                IN THE SUPREME COURT, STATE OF WYOMING

                                         2015 WY 51

                                                            OCTOBER TERM, A.D. 2014

                                                                    March 31, 2015

CELINA APODACA,

Appellant
(Plaintiff),

v.                                                   S-14-0151

SAFEWAY, INC.,

Appellee
(Defendant).

                    Appeal from the District Court of Fremont County
                       The Honorable Norman E. Young, Judge

Representing Appellant:
      Celina Apodaca, Pro se, Lander, WY.

Representing Appellee:
      Joanna R. Vilos of Holland & Hart LLP, Cheyenne, WY.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] 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

[¶2] 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

[¶3] 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 13,
2013, the federal Equal Employment Opportunity Commission (EEOC) issued a notice to
Safeway informing it that Ms. Apodaca had filed a charge of discrimination alleging age
discrimination. On November, 19, 2013, the EEOC issued a Dismissal and Notice of
Rights, which informed Ms. Apodaca that the EEOC was closing its file on Ms.
Apodaca’s charge because her charge was not timely filed with the EEOC.

[¶4] 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 against her wishes;
      --her assistant manager called her a “fuckin[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.




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[¶5] 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.”

[¶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.
Apodaca’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.
                     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.

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

                              STANDARD OF REVIEW

[¶8]   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)).




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[¶9] 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 civil procedure, we
look to federal authority interpreting a particular rule as an aid in applying the
comparable Wyoming rule.”).

[¶10] “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

[¶11] 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, et 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
1
  The Wyoming Fair Employment Practices Act (WFEPA) also prohibits age discrimination. See Wyo.
Stat. Ann. § 27-9-105(a) (LexisNexis 2013). Nothing in the record or Ms. Apodaca’s complaint
indicates, however, that Ms. Apodaca filed a charge of discrimination with the Wyoming Department of
Employment, which charge was required to have been filed within six months of the alleged
discrimination. See Wyo. Stat. Ann. § 27-9-106(a) (LexisNexis 2013).


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             (B) in a case to which section 633(b) of this title applies,
             within 300 days after the alleged unlawful practice occurred,
             or within 30 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).

[¶12] The Tenth Circuit Court of Appeals has explained the consequences of a failure to
meet the section 626 time frames:

             We start with the first question first, asking whether
             preexisting law requires dismissal of the plaintiffs’ claims.
             The Age Discrimination Employment Act (“ADEA”)
             provides that “no civil action may be commenced” in federal
             court unless the would be plaintiff first files a grievance with
             the appropriate administrative agency—and does so “within
             300 days after the alleged unlawful practice occurred” where
             (as here) a state administrative agency process exists to
             remedy the alleged discrimination. 29 U.S.C. § 626(d)(1)(B).
             Compliance       with    this   administrative        exhaustion
             requirement and its concomitant limitations period is a
             condition precedent to bringing suit. Montes v. Vail Clinic,
             Inc., 497 F.3d 1160, 1167–68 (10th Cir.2007).

Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir. 2011) (emphasis
added). The Tenth Circuit has further held that compliance with the ADEA’s
administrative exhaustion requirements is not only a condition precedent to suit, but is a
jurisdictional prerequisite. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317
(10th Cir. 2005) (“[A] plaintiff’s exhaustion of his or her administrative remedies is a
jurisdictional prerequisite to suit under the ADEA.”).

[¶13] In this case, Ms. Apodaca not only failed to allege that she timely complied with
the ADEA’s administrative exhaustion requirements, the record establishes that she did
not timely comply. Ms. Apodaca had at most 300 days to file with the EEOC her charge
of discrimination against Safeway, measured from the last act of discrimination. See
Almond, 665 F.3d at 1176 (Under the ADEA, “the clock starts running when the plaintiff
first knew or should have known of his injury, whether or not he realized the cause of his
injury was unlawful.”). Ms. Apodaca’s last day of employment with Safeway was
December 21, 2012, which is the last date on which she could have been subjected to the
alleged discrimination, and she filed her charge with the EEOC on November 13, 2013.
The elapsed time was 327 days, making her charge clearly untimely. The district court
thus properly dismissed Ms. Apodaca’s claims for lack of jurisdiction.


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B.    State Law Claims

[¶14] Ms. Apodaca’s complaint alleges claims for emotional stress, personal injury, and
loss of income, without any further elaboration on the cause of action being asserted.
The claims therefore may sound in tort or breach of contract.

[¶15] The record establishes that Ms. Apodaca’s employment with Safeway was
governed by a collective bargaining agreement (CBA). The existence of the CBA may
raise federal law preemption questions. See Saunders v. Amoco Pipeline Co., 927 F.2d
1154, 1155 (10th Cir. 1991) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210–
11, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985)) (“Section 301 of the Labor
Management Relations Act (29 U.S.C. § 185(a)), preempts state causes of action
addressing ‘questions relating to what the parties to a labor agreement agreed, and what
legal consequences were intended to flow from breaches of that agreement, . . . whether
such questions arise in the context of a suit for breach of contract or in a suit alleging
liability in tort.’”). On appeal, however, Ms. Apodaca has presented no argument or
authorities concerning the application of the CBA or the Labor Management Relations
Act. She has in fact presented no cogent argument at all concerning her state law claims.

[¶16] This Court has addressed similar circumstances:

                     We have often stated that we expect pro se litigants to
             “handle this professional, technical work in compliance with
             Wyoming rules of appellate procedure in the same way that
             trained lawyers are expected to perform” but “[t]his court has
             spoken to a certain leniency which should be afforded the pro
             se litigant.” Hamburg v. Heilbrun, 889 P.2d 967, 968
             (Wyo.1995). However, blatant disregard of our rules of
             procedure cannot and will not be condoned. When a brief
             fails to present a valid contention supported by cogent
             argument or pertinent authority, “we consistently have
             refused to consider such cases, whether the brief is by a
             litigant pro se or is filed by counsel.” Id.

Berg v. Torrington Livestock Cattle Co., 2012 WY 42, ¶ 14, 272 P.3d 963, 966 (Wyo.
2012); see also Sonnett v. First Am. Title Ins. Co., 2013 WY 105, ¶ 26, 309 P.3d 799, 808
(Wyo. 2013) (refusing to consider issue of pro se appellant not supported by proper
citation of authority and cogent argument).

[¶17] Because Ms. Apodaca has not supported her appeal relating to the dismissal of her
state law claims with citation of authority and cogent argument, we summarily affirm the
district court’s dismissal of those claims.


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                                   CONCLUSION

[¶18] We find no error in the district court’s dismissal of Ms. Apodaca’s complaint for
lack of subject matter jurisdiction. Affirmed.




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