MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Defendant's Motion to Dismiss Plaintiff's Amended Complaint ("Motion") [
Plaintiff, proceeding pro se, initiated this action on May 5, 2015. Docket #1. His original Complaint alleged that Defendant MoneyGram
Defendant filed its first Motion to Dismiss on October 27, 2015 [see docket #27], which the Court dismissed as moot [see docket #41] based on the filing of Plaintiff's operative Amended Complaint [docket #40]. Defendant then filed the currently pending Motion on November 25, 2015 [docket #42]; Plaintiff filed his Response on December 5, 2015 [docket #47]
Plaintiff alleges he was wrongfully discharged by MoneyGram after Plaintiff filed a lawsuit in 2001 in which he accused the company of employment discrimination.
Defendant argues Plaintiff has failed to state a claim for retaliation and, as a result, that his case should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). See generally docket #42.
"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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two-prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider 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 680.
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 across the line from conceivable to plausible.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
A federal court must construe a pro se plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id.
Plaintiff asserts Defendant retaliated against him in 2014 for filing a lawsuit against Defendant in 2001. See generally docket #40. Defendant contends that Plaintiff's retaliation claim should be dismissed for failure to state a plausible claim for relief under Rule 12(b)(6). See generally docket #42.
The elements necessary to establish a prima facie case of retaliation claim under Title VII are (1) the plaintiff's protected opposition under Title VII, (2) an adverse employment action against the plaintiff, and (3) a causal connection between the protected opposition and the adverse employment action. Zokari v. Gates, 561 F.3d 1076, 1081 (10th Cir. 2009). Here, the only reference to a retaliation claim made by the Plaintiff in the Amended Complaint is to state that he "belongs to a protected class" and that he "suffered an adverse employment action by losing his previous job because of the MoneyGram retaliation." Docket #40 at 2. Even construing Plaintiff's filings liberally and looking to the original Complaint as well as the Amended Complaint, Plaintiff states only in conclusory fashion that he was retaliated against "for having filed a lawsuit against the company for discrimination in or about 2000." Docket #1 at 9. Plaintiff also filled out the pre-printed portion of the original Complaint form reflecting "retaliation" as the basis upon which the Plaintiff claims he suffered discrimination. Id. at 2. Yet, there are no factual allegations supporting the retaliation claim — not in the Amended Complaint, the original Complaint, or in any other documents filed with the Court.
While Plaintiff fails to state the nature of his alleged protected activity, his filings with the Court leave only two options: (1) a 15-year-old Colorado unemployment claim, on which he prevailed; or (2) a 15-year-old federal lawsuit, which was dismissed with prejudice. Docket #1 at 3, 7. The Court agrees with Defendant that neither is sufficient to support Plaintiff's retaliation claim. With no facts to show causation between Plaintiff's protected activity and alleged retaliation, Plaintiff would have to rely on temporal proximity to prove his retaliation claim; however, a 15-year gap between the protected activity and the alleged retaliation is far too long to prove the claim. See, e.g., Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181-82 (10th Cir. 2006) (nine months was too temporally remote to support inference of causation); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month period, standing alone, is insufficient to establish causation). The Tenth Circuit has made clear that "[u]nless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation." O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). Here, Plaintiff has failed to show facts or temporal proximity to support his retaliation claim.
Plaintiff's narrative assertions sprinkled liberally throughout his filings with the Court do nothing to plausibly suggest entitlement to relief, instead providing only more bare assertions, such as the following:
Thus, under Iqbal and Twombly, Plaintiff has failed to state a viable claim for retaliation under Title VII. Iqbal, 129 S. Ct. at 1949 ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (citing Twombly, 550 U.S. at 556)).
Therefore, based on the foregoing and the entire record herein, this Court