United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS
BENSON United States District Judge.
Judge Dee Benson Before the court is United States Bankruptcy
Court for the District of Utah's
(“Defendant”) Motion to Dismiss Plaintiff's
Civil Rights Complaint Pursuant to Federal Rule of Civil
Procedure 12(b)(1). Plaintiff Suzie Suarez
(“Suarez”) is proceeding pro se and has not
responded to Defendant's motion to dismiss and the time
for doing so has passed. See Fed. R. Civ. P. 6;
DUCivR 7-1(b)(3)(A). Although Suarez's failure to respond
provides the court grounds to grant Defendant's motion,
the court will address the merits of Defendant's motion
October 27, 1997, and May 2, 2012, Suarez was employed as a
member of the clerical staff in the office of the Clerk of
the Bankruptcy Court for the District of Utah.Between 2009 and
2011, Suarez utilized the Defendant's Employee Dispute
Resolution Plan (“EDRP”) to submit four
complaints alleging that she had been subject to
discrimination, retaliation, and a hostile work environment
because of her race, national origin, age, and
2, 2012, Suarez resigned from her position. Suarez claims
that her resignation was involuntary due to mistreatment by
Defendant. After her resignation, Suarez utilized
Defendant's EDRP to resolve her complaint and, on May 12,
2012, Suarez was provided with a final decision by
Defendant. Unsatisfied with Defendant's response
to her EDRP complaint, Suarez filed the above captioned
lawsuit alleging that Defendant forced her to resign from her
position in retaliation for filing administrative complaints
against her supervisors.
complaint is difficult to follow, but appears to assert that
Defendant violated her civil rights under one or more of the
following statutes: Title VII of the Civil Rights Act of 1964
(“Title VII”), the Age Discrimination in
Employment Act of 1967 (“ADEA”), or the
Rehabilitation Act. Suarez's complaint also seems to
assert claims against Defendant pursuant to 42 U.S.C. §
1983 and 42 U.S.C. § 1985.
is proceeding pro se. Therefore, the court will
“construe [her] pleadings liberally and hold the
pleadings to a less stringent standard than formal pleadings
drafted by lawyers.” Riddle v. Mondragon, 83
F.3d 1197, 1202 (10th Cir. 1996) (citations omitted).
However, Suarez's pro se status does not discharge her
from complying with the court's rules and procedures, and
the court will not assume an advocacy role on Suarez's
behalf. See Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994) (noting that the Tenth Circuit
“has repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants”
(quotations and citations omitted)); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(“[W]e do not believe it is the proper function of the
district court to assume the role of advocate for the pro se
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the
court may dismiss a claim for lack of subject matter
jurisdiction. “Subject-matter jurisdiction involves a
court's authority to hear a given type of case” and
the party invoking federal jurisdiction bears the burden of
establishing that the court has subject matter jurisdiction.
Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224
(10th Cir. 2004). Motions to dismiss pursuant to Rule
12(b)(1) take two forms. First, a party may attack the
complaint facially. Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). “In reviewing a facial
attack on the complaint, a district court must accept the
allegations in the complaint as true.” Id.
(citations omitted). Second, a party may go beyond the
complaint and challenge the factual basis on which the
plaintiff seeks to assert the court's subject matter
jurisdiction. Id. at 1003.
case, Defendant facially attacks Suarez's complaint.
Defendant argues that none of the federal statues under which
Suarez seeks relief provide her a remedy. Accordingly,
the court will accept all of Suarez's factual allegations
as true and examine whether the federal statutes in question
provide the court subject matter jurisdiction over this case.
reasons that follow, Suarez's complaint is dismissed.
None of the federal statutes under which Suarez seeks relief
provide the court subject matter jurisdiction. Suarez's
remedies, if any, must be sought administratively through
Subject Matter Jurisdiction Under Title VII and the
was not employed in a competitive service position and,
therefore, Suarez has no right to relief under Title VII or
the ADEA. Both Title VII and the ADEA apply to “those
units of the judicial branch of the Federal Government having
positions in the competitive service.” See 42
U.S.C. § 2000e-16(a); 29 U.S.C. § 633a(a).
Competitive service positions are “civil service
positions not in the executive branch which are specifically
included in the competitive service by statute.” 5
U.S.C. § 2102(a)(2). Clerical positions within the
office of the Clerk of the Bankruptcy Court are not
considered competitive service positions. See Williams v.
McClellan, 569 F.2d 1031, 1033 (8th Cir. 1978); see
also Frost v. United States, 115 Fed.Cl. 252, 255-57
(2014); Bryant v. O'Connor, 671 F.Supp. 1279,