IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 51

OCTOBER TERM, A.D. 2014

March 31, 2015

CELINA APODACA,

Appellant

(Plaintiff),

v.

SAFEWAY, INC.,

Appellee

(Defendant).

S-14-0151

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.
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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.