Wilkins v. Midtown Chevron , 370 F. App'x 919 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
March 30, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JORDAN M. WILKINS,
Plaintiff - Appellant, No. 09-4142
v. (D. Utah)
MIDTOWN CHEVRON, K&H (D.C. No. 2:08-CV-01000-DS)
ENTERPRISES, CHARLES
HUNSAKER, SUSAN KETCHUM,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
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.
Jordan M. Wilkins, proceeding pro se, appeals the district court’s dismissal
of the civil rights complaint he brought pursuant to Title VII of the Civil Rights
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Act of 1964, 42 U.S.C. § 2000e et seq. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, 1 this court affirms.
In his complaint, Wilkins alleged the discriminatory acts which were the
basis of his suit were as follows: “I’ve got a file full of things about this.” As the
factual basis supporting his claim of discrimination, Wilkins simply alleged he
“wasn’t treated right while under employment, it’s all in the report to the Labor
Commission.” In light of these exceedingly Spartan allegations, the district court
concluded that even liberally construed, Wilkins Title VII complaint failed to
state a valid claim of discrimination. See Robbins v. Oklahoma, 519 F.3d 1242,
1247-48 (10th Cir. 2008) (holding that allegations in a complaint “must be
enough that, if assumed to be true, the plaintiff plausibly (not just speculatively)
has a claim for relief”); E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir.
2007) (noting generally that to state a valid Title VII claim of disparate treatment,
a plaintiff must allege sufficient facts to demonstrate (1) he is a member of a
protected class; (2) he suffered an adverse employment action; and (3) the adverse
1
Midtown Chevron’s Motion to Dismiss Appeal is hereby DENIED.
Although the district court granted Midtown Chevron’s motion to Dismiss
Wilkins’s complaint on June 10, 2009, that judgment was not set out in a separate
document. Fed. R. Civ. P. 58(a). Thus, the judgment did not become final until
150 days after the entry on the docket of the district court’s order granting
Midtown Chevron’s motion to dismiss. Fed. R. Civ. P. 58(c)(2)(B). Accordingly,
Wilkins’s July 20, 2009, notice of appeal was timely filed. Fed R. App. P.
4(a)(1), (2), (7).
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employment action took place under circumstances giving rise to an inference of
discrimination).
This court reviews de novo the district court’s grant of a Fed. R. Civ. P.
12(b)(6) motion to dismiss. Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1192 (10th Cir. 2009). Here, even assuming the truth of each
allegation in Wilkins complaint, the complaint does not state a valid Title VII
claim. 2 Thus, we AFFIRM the district court’s order of dismissal for substantially
those reasons set out in the order of dismissal dated June 10, 2009.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
2
After Midtown Chevron filed its Rule 12(b)(6) motion to dismiss, Wilkins
filed an amended complaint. The district court struck the amended complaint
pursuant to Fed. R. Civ. P. 15(a) because Wilkins had not previously obtained
leave of court or consent of Midtown Chevron. This court need not determine
whether the district court’s decision to strike Wilkins’s proposed amended
complaint amounts to an abuse of discretion, Hertz v. Luzenac Group, 576 F.3d
1103, 1117 (10th Cir. 2009), because the proposed amended complaint does not
rectify the deficiencies that justified dismissal of the original complaint. In
particular, even construed liberally, the proposed amended complaint does not
allege any action that could amount to an adverse employment action and the
three isolated instances of alleged improper conduct on the part of Midtown
Chevron employees are simply not sufficient, under any standard, to state a claim
of hostile work environment.
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