McBride v. American Express , 72 F. App'x 786 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 30 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
HOWARD E. McBRIDE,
Plaintiff-Appellant,
v. No. 02-4216
(D. Utah)
JOSEPH GALLEGOS, JR., (D.C. No. 2:01-CV-979-DAK)
Defendant-Appellee,
and
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY;
DAVID PENA,
Defendants.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Mr. Howard E. McBride, acting pro se, 1 appeals the dismissal of his Title
VII 2 discrimination claim against Mr. Joseph Gallegos, Jr., the director of a state
agency. The district court dismissed the complaint based on quasi-judicial
immunity, qualified immunity for government officials, and failure to state a
claim under Title VII. Exercising jurisdiction pursuant to 28 U.S.C. § 1291(2002), we affirm.
While employed by American Express Travel Related Services Company
(“American Express”), Mr. McBride filed a discrimination complaint 3 against his
employer with the Utah Division of Antidiscrimination and Labor (“the
Division”). His employment was terminated, according to him, when American
Express received notice that his discrimination claim would be investigated by the
Division. Following his termination, Mr. McBride amended his complaint with
the Division alleging retaliatory discharge. The Division investigated, found no
discrimination, and on May 22, 2001, the director, Mr. Gallegos, issued a
We liberally construe Mr. McBride’s pro se pleadings. Ledbetter v. City of
1
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
2
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
3
Mr. McBride charged his employer with discriminatory conduct based on
age, sex, and disability.
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Determination and Order dismissing Mr. McBride’s complaint.
On December 10, 2001, Mr. McBride brought a Title VII discrimination
complaint in federal district court against American Express and the Division,
alleging violations of his civil rights. The Division moved to dismiss the claim
against it because it was not Mr. McBride’s employer, the proper defendant under
Title VII, and based on Eleventh Amendment immunity. The district court
dismissed the complaint against the Division on April 10, 2002, but allowed Mr.
McBride the opportunity to amend.
In his amended complaint, Mr. McBride named the Division director, Mr.
Gallegos, as a defendant. 4 Mr. Gallegos filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). The district court granted the motion on September 13,
2002, based on quasi-judicial immunity, qualified immunity for government
officials, and failure to state a claim under Title VII. On September 24, 2002, the
district court granted Mr. Gallegos’s Motion for Rule 54(b) Certification,
directing entry of final judgment and dismissing with prejudice all claims against
him. Mr. McBride’s suit against American Express continues in the district court.
Mr. McBride appeals the dismissal of his complaint against Mr. Gallegos.
4
His amended complaint also named Mr. David Pena as a defendant. Mr.
Pena was the Division employee who investigated Mr. McBride’s discrimination
charge. Mr. Pena was not served in this action, and thus is not a party to the
lawsuit. See Bristol v. Fibreboard Corp., 789 F.2d 846, 847-48 (10th Cir. 1986).
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As best we understand his arguments, he claims (1) the district court erred in
concluding Mr. Gallegos was entitled to immunity, and (2) the Division
investigation, performed under the direction of Mr. Gallegos, denied Mr. McBride
due process rights. 5
We review de novo a dismissal for failure to state a claim upon which relief
can be granted. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 1999). After a careful review of the record and applicable law, we
agree with the district court’s thoughtful decision. 6
First, Mr. Gallegos is immune from suit under the doctrine of absolute
quasi-judicial immunity. Stump v. Sparkman, 435 U.S. 349, 355-57 (1978); Butz
v. Economou, 438 U.S. 478, 512-14 (1978). As director of the Division he has
adjudicatory responsibilities, in that he “is empowered to conduct hearings and
issue written decisions in discrimination cases.” McBride v. American Express
5
Mr. McBride presents a litany of other issues for review, including abuse
of governmental power, unjust outcome at the trial court, uneven enforcement of
the Antidiscrimination statute, inappropriate judgment for dismissing all claims
against Mr. Gallegos with prejudice, condoning a cover-up of a corrupt legal
process, bias in the trial court against Mr. McBride, and substitution of the trial
court’s own theories in place of documentary evidence. Each of these allegations
is subsumed in the broader contention that the district court erred in granting Mr.
Gallegos’s Motion to Dismiss. As such, these secondary issues will only be
discussed to the extent they are relevant to the broader issue of proper dismissal
of a named defendant. Most are not discussed because they are frivolous.
6
See McBride v. American Express Travel, 2:01-CV-979K (D. Utah Sept.
13, 2002).
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Travel, 2:01-CV-979K (D. Utah Sept. 13, 2002) (citing Utah Code Ann. §§ 34A-
5-104(4)(b), 34A-5-107(4)(b), 34A-5-107(4)(c). He employed these adjudicatory
responsibilities when he issued the Determination and Order dismissing Mr.
McBride’s complaint.
Second, he is also protected under the doctrine of qualified immunity,
which shields government officials “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Mr.
McBride argues Mr. Gallegos violated his due process rights by failing to conduct
a thorough, impartial investigation prior to dismissing his complaint. Like his
complaint, his arguments are verbose, but imprecise. He has not alleged specific
facts, only unsupported conclusory statements that fail to detail how Mr. Gallegos
violated his constitutional rights, and he fails to explain how Mr. Gallegos would
have known his conduct was contrary to clearly established statutory or
constitutional rights. 7
7
“[W]hen the plaintiff is proceeding pro se, we must construe [his]
pleadings liberally, applying a less stringent standard than is applicable to
pleadings filed by lawyers. This court, however, will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (quotation marks and citations omitted). “[C]onclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can
be based . . . . Moreover, in analyzing the sufficiency of the [pro se] plaintiff’s
complaint, the court need accept as true only the plaintiff’s well-pleaded factual
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Finally, all Title VII claims brought against Mr. Gallegos must fail as a
matter of law because Title VII creates a private right of action against employers
who allegedly performed unlawful employment practices. See Haynes v.
Williams, 88 F.3d 898, 899-901 (10th Cir. 1996). Mr. Gallegos was not Mr.
McBride’s employer.
Accordingly, we AFFIRM the dismissal of Mr. McBride’s complaint
against Mr. Gallegos for substantially the same reasons articulated by the district
court.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
contentions, not his conclusory allegations.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
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