Apodaca v. Safeway, Inc.

2015 WY 51, 346 P.3d 21, 2015 Wyo. LEXIS 57, 2015 WL 1431947
CourtWyoming Supreme Court
DecidedMarch 31, 2015
DocketS-14-0151
StatusPublished
Cited by3 cases

This text of 2015 WY 51 (Apodaca v. Safeway, Inc.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apodaca v. Safeway, Inc., 2015 WY 51, 346 P.3d 21, 2015 Wyo. LEXIS 57, 2015 WL 1431947 (Wyo. 2015).

Opinion

HILL, Justice.

[T1] Celina Apodaca filed a complaint against Safeway Inc., her former employer, asserting claims for harassment, emotional stress, personal injury, loss of income, and age discrimination. Safeway moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim, and the district court granted that motion. We affirm.

ISSUES

[12] In her pro se statement of issues, Ms. Apodaca quotes from the district court's dismissal order and asserts that she "was in compliance with the time frame." Safeway states the issues for our review more clearly:

A. Did the District Court correctly dismiss Apodaca's discrimination and harassment claims where she failed to allege timely satisfaction of the statutory jurisdictional conditions precedent, and she in fact failed to satisfy such conditions?
B. Were Apodaca's state law tort claims properly dismissed where such claims were preempted by the Labor Management Relations Act?

FACTS

[13] Ms. Apodaca began working as a courtesy clerk for the Safeway store in Lander, Wyoming on October 20, 2011. She resigned on December 21, 2012. On November 18, 2018, the federal Equal Employment Opportunity Commission (EEOC) issued a notice to Safeway informing it that Ms. Apo-daca had filed a charge of discrimination alleging age discrimination. On November, 19, 2018, the EEOC issued a Dismissal and Notice of Rights, which informed Ms. Apoda-ca that the EEOC was closing its file on Ms. Apodaca's charge because her charge was not timely filed with the EEOC.

[14] On February 4, 2014, Ms. Apodaca filed a complaint in district court alleging the following incidents occurred during her employment with Safeway:

-she did not receive a 90-day evaluation and pay increase;
-her work schedule was changed agalnst her wishes;
-her assistant manager called her a "fue kin[g] liar" in front of two co-workers;
-a co-worker shoved her with the bathroom door while she was mopping the bathroom and called her a "fuck;" and
-an unspecified person broke into her work locker,

[T5] Ms. Apodaca alleged that she complained to management concerning these grievances, and management took no action to address her concerns. Ms. Apodaca asserted damages for: harassment, emotional stress, personal injury, loss of income, and age discrimination. For relief, Ms. Apodaca requested a "settlement in the amount of $1 million dollars."

[1 6] On February 28, 2014, Safeway filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Wyoming Rules of Civil Procedure, asserting that Ms. Apoda-ea's harassment and age discrimination claims were barred for failure to exhaust administrative remedies and her state law claims were preempted by federal law. On April 17, 2014, the district court issued an order granting the motion to dismiss. In so ruling, the court found:

1. Plaintiff's complaint generally alleges negligence on the part of Defendant resulting in harassment; emotional stress; personal injury; loss of income; and age discrimination.
2, While Plaintiff's claims, or some of them, are recognizable under both Federal and Wyoming law, clear time frames and procedures exist which have not been met by Plaintiff,
*23 3. Compliance with the time frames and procedures are conditions precedent to the advancement of Plaintiff's suit; without such compliance this court is without jurisdiction to proceed.

[17] On May 13, 2014, Ms. Apodaca filed a notice of appeal to this Court.

STANDARD OF REVIEW

[18] This Court reviews dismissals . pursuant to W.R.C.P. 12(b)(6) as follows:

When reviewing W.R.C.P. 12(b)(6) motions to dismiss, we accept the facts stated in the complaint as true and view them in the light most favorable to the plaintiff. We will sustain such a dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any fact which would entitle him to relief.

In re Estate of Scherer, 2014 WY 129, ¶ 5, 336 P.3d 129, 131 (Wyo.2014) (quoting Sinclair v. City of Gillette, 2012 WY 19, ¶ 8, 270 P.3d 644, 646 (Wyo.2012)).

[19] When reviewing the dismissal of an action under W.R.C.P. 12(b)(1) for lack of subject matter jurisdiction, we accept the allegations of the complaint as true and we consider the facts in the light most favorable to the non-movant. Cantrell v. Sweetwater County Sch. Dist. No. 2, 2006 WY 57, ¶ 4, 133 P.3d 983, 984 (Wyo.2006);, Wilson v. Town of Alpine, 2005 WY 57, ¶ 4, 111 P.3d 290, 291 (Wyo.2005). We note also that in ruling on a W.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, materials outside the complaint, such as affidavits and other documents, may be considered. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995); Graus v. OK Inv., Inc., 2014 WY 166, ¶ 14, 342 P.3d 365, 369 (Wyo.2014) (quoting Bratton v. Blenkinsop (In re Bratton), 2014 WY 87, ¶ 24, 330 P.3d 248, 253, n. 6 (Wyo.2014)) ("Because of the similarities between federal and Wyoming rules of eivil procedure, we look to federal authority interpreting a particular rule as an aid in applying the comparable Wyoming rule.").

[110] "The existence of subject matter jurisdiction is a question of law that we review de novo." Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo.2014) (quoting Excel Constr., Inc. v. Town of Lovell, 2011 WY 166, ¶ 12, 268 P.3d 238, 241 (Wyo.2011)).

DISCUSSION

A. Discrimination Charges °

[111] In alleging that she was subjected to discrimination, the only type of discrimination Ms. Apodaca alleged was age discrimination. This also was the only type of discrimination alleged in her charge filed with the EEOC. The federal law applicable to Ms. Apodaca's discrimination claim is the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, ef seq., which prohibits employment discrimination based on age. 1 Section 626 of the ADEA provides:

(d)(1) No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed-
(A) within 180 days after the alleged unlawful practice occurred; or
(B) in a case to which section 688(b) of this title applies, within 800 days after the alleged unlawful practice occurred, or within 80 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

29 U.S.C. § 626(d)(1).

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