United States District Court, D. Utah, Central Division
District Judge Jill N. Parrish
REPORT AND RECOMMENDATION TO DISMISS AMENDED CLAIMS
AGAINST DEFENDANTS BRIGHAM YOUNG UNIVERSITY, DAVID TUELLER,
AND SCOTT ELKINS (ECF NO. 29)
J. FURSE, UNITED STATES MAGISTRATE JUDGE.
Brigham Young University (BYU) and David Tueller move the
Courtto dismiss pro se Plaintiff Joseph
Castellano's Amended Complaint pursuant to Federal Rules
of Civil Procedure (“Rule”) 12(b)(6). (Mot. to
Dismiss Am. Compl. (“Mot.”), ECF No. 29.) BYU and
Mr. Tueller argue the ADA and UADA claims against Mr. Tueller
and Mr. Elkins fail because they do not qualify as
“employers.” (Mot. 1, ECF No. 29.) They also
assert that the UADA claim against BYU fails because BYU does
not constitute an “employer” under the UADA.
(Id. at 2.) Lastly, BYU and Mr. Tueller contend that
Mr. Castellano's disability discrimination claim fails to
state a claim for disability discrimination. (Id. at
1.) Having reviewed the parties' briefings, the
undersigned RECOMMENDS dismissing the discrimination claims
against BYU, Mr. Tueller, and Mr. Elkins with prejudice. The
Amended Complaint's claims under the UADA fail because
the Act does not apply to religious educational institutions.
The Amended Complaint also fails to state an ADA
discrimination claim against BYU because Mr. Castellano only
requested an accommodation and retroactive leniency over
three months after his termination. Therefore, the
undersigned RECOMMENDS dismissing the discrimination claim
against BYU with prejudice. Mr. Castellano asserts no claims
that either the UADA or the ADA authorizes against Mr.
Tueller or Mr. Elkins. Therefore, the undersigned RECOMMENDS
dismissing Mr. Tueller and Mr. Elkins.
AND PROCEDURAL HISTORY
November 29, 2016, Mr. Castellano filed his Complaint
asserting violations of the ADA and UADA. (Compl. 4, ECF No.
3.) On January 30, 2017, the BYU Defendants moved to dismiss
Ms. Castellano Complaint for failure to state a claim upon
which this Court can grant relief. (Mot. to Dismiss, ECF No.
7.) The District Judge dismissed Mr. Castellano's
Complaint without prejudice for failure to state a claim and
granted him thirty days from the issuance of the Court's
Order to amend his Complaint. (Order Adopting R&R 2, ECF
No. 18.) On December 29, 2017, Mr. Castellano filed the
Amended Complaint at issue. (Am. Compl., ECF No. 26.)
Court takes “as true all well-pled (that is, plausible,
non-conclusory, and non-speculative) facts alleged in
plaintiffs' complaint.” Dudnikov v. Chalk &
Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th
Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
Castellano began working as a chef at BYU around September
2011. (Am. Compl. 2, ECF No. 26.) In July 2014, Mr.
Castellano met with Mr. Tueller and another BYU
representative who informed him that “they were firing
[him] because he did not answer [a] question accurately on
the job application that he completed in 2011.”
(Id.) Mr. Castellano alleges he misinterpreted the
question on the application as a result of his learning
disability. (Id. at 3.) Mr. Castellano alleges BYU
knew he had a learning disability and fired him
“because of his learning disability.”
(Id.) In October 2014, Mr. Castellano seems to have
requested BYU reconsider his termination in light of his
disability. (Id. at 2.)
Castellano proceeds pro se. The Court construes pro se
pleadings liberally and holds them to a “less stringent
standard.” Smith v. United States, 561 F.3d
1090, 1096 (10th Cir. 2009) (quoting Garrett v. Selby,
Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (internal quotation omitted)). However, the Court
cannot act as an advocate for a pro se litigant, who must
comply with the fundamental requirements of the Rules.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007) (“[T]his court has repeatedly insisted that pro
se parties follow the same rules of procedure that govern
other litigants.”) (quoting Garrett, 425 F.3d
at 840). A pro se plaintiff's claims should survive a
Rule 12(b)(6) motion, “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.” Smith, 561 F.3d at 1096
(quoting Hall, 935 F.2d at 1110.)
Castellano argues that he never asserted claims “under
the ADA Act or the Utah Anti-Discrimination Act.” (Mot.
to Dismiss Dismissal (“Opp'n”) 1, ECF No.
30.) Later filings suggest Mr. Castellano thinks he is
bringing claims under Rules 8 and 10. (Reply Mem. in Supp. of
Mot. to Dismiss Am. Compl. 1, ECF No. 32.) The Federal Rules
of Civil Procedure do not provide a cause of action. Rather,
they state the procedures a party must follow to pursue a
cause of action provided by statute or common law in federal
Castellano contends that he believes BYU fired him because of
his learning disability. (Opp'n 1, ECF No. 30.) Mr.
Castellano's assertion that the BYU Defendants fired him
because of his learning disability directly implicates both
the ADA and UADA. Title I of the ADA prohibits certain
employers from discriminating against “a qualified
individual on the basis of disability in regard to job
application procedures.” 42 U.S.C. § 12112.
Therefore, Mr. Castellano alleges the BYU Defendants violated
the ADA because they fired him as a result of his disability.
The same holds true for the UADA. The UADA prohibits
particular employers from discharging an employee
“otherwise qualified” because of his or her
disability. Utah Code Ann. § 34A-5-106(1)(a)(i)(H).
Thus, Mr. Castellano alleges the BYU Defendants violated the
UADA because they allegedly discharged him because of his
The UADA Excludes BYU from the Definition of
UADA prohibits particular discriminatory employment practices
by employers. Utah Code Ann. § 34A-5-106(1)(a)(i). Mr.
Castellano alleges BYU fired him because of his disability.
The UADA prohibits discharging an employee based upon his or
her disability. Utah Code Ann. § 34A-5-106(1)(a)(i)(H).
However, the UADA expressly exempts “religious
educational institution[s]” from the definition of
employer. Utah Code Ann. § 34A-5-102(1)(h)(ii)(A). While
Mr. Castellano's Amended Complaint does not allege BYU
has any religious affiliations, the undersigned takes
judicial note of the fact that the Church of Jesus Christ of
Latter-day Saints “founded, support[s], and
guide[s]” BYU. See Mission & Aims of BYU,
http://aims.byu.edu/, last visited Aug. 16, 2018
(acknowledging relationship). In considering whether BYU
qualifies as “a religious educational institution,
” the undersigned considers the language of the
definition of what an “‘Employer'” does
not include.” Utah Code Ann. §
34A-5-102(1)(h)(ii). That definition sweeps broadly to
exclude all types of employers connected with a religious
institution. Therefore, the undersigned concludes BYU falls
within that exclusion. Hence, the undersigned RECOMMENDS
dismissing Mr. Castellano's UADA claims against BYU with
prejudice because amendment would prove futile. See ...