FILED

United States Court of Appeals

Tenth Circuit

October 12, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EVA AYALLA,

Plaintiff - Appellant,

v.

UNITED STATES POSTMASTER

GENERAL,

Defendant - Appellee.

No. 16-3088

(D.C. No. 2:15-CV-07600-JAR-TJJ)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MORITZ, Circuit Judges.**

Plaintiff-Appellant Eva Ayalla, appearing pro se, appeals from the district

court’s dismissal of her amended complaint against the United States Postal

Service (USPS) and the district court’s denial of her motion to reconsider. Ayalla

v. United States Postal Serv., No. 15-7600-JAR-TJJ, 2015 WL 8334909 (D. Kan.

Dec. 8, 2015), on reconsideration, 2016 WL 497752 (D. Kan. Feb. 8, 2016). Ms.

*

 This order and judgment is not binding precedent, except under the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.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Ayalla brought claims based upon the Age Discrimination in Employment Act

(ADEA), the Equal Pay Act (EPA), and the Fifth and Fourteenth Amendments to

the United States Constitution. The district court granted the government’s

motion to dismiss. The Fifth and Fourteenth Amendment claims were dismissed

for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The ADEA and

EPA claims were dismissed for failure to state a claim. Fed. R. Civ. P. 12(b)(6). 

The district court then granted Ms. Ayalla additional time to respond since, due to

a postage error by the USPS, she did not timely receive the motion to dismiss. 

Upon reconsideration, the district court affirmed its prior order dismissing the

suit, and denied as futile Ms. Ayalla’s motion to amend her complaint a third

time. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

On appeal, Ms. Ayalla challenges only the district court’s dismissal of her

ADEA claim, a decision we review de novo. Smith v. United States, 561 F.3d

1090, 1098 (10th Cir. 2009). To survive a motion to dismiss, a complaint must

allege sufficient facts which, taken as true, state a plausible claim for relief. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is plausible if there are

sufficient facts to allow “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Probability is not the test,

but there must be something beyond “a sheer possibility” that the defendant is

liable. Id.

Ms. Ayalla argues that she was treated worse than her younger co-workers

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during her time working as a custodian for the USPS. Specifically, she alleges

that her supervisor assigned her harder, more physically-demanding duties than he

gave her co-workers, and that he refused her request to more equitably distribute

the workload or to switch her daily outside routes with the indoor routes of

another custodian. 

To prove a prima facie case of age discrimination, a plaintiff must show,

among other things, that she suffered an adverse employment action. Jones v.

Oklahoma City Pub. Sch., 617 F.3d 1273, 1279 (10th Cir. 2010). Though we take

a case-by-case approach and liberally define it, an adverse employment action

generally involves a “significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Id.

(internal quotation marks omitted). Failing to grant Ms. Ayalla’s request that

another custodian take her outside route, and that she take his inside route due to

her physical limitations, does not constitute an adverse employment action

because “there is no change of circumstances alleged.” Ayalla, 2015 WL

8334909, at *2 (emphasis added). We agree with the district court that these

circumstances simply do not support an inference of discrimination based upon

her age. Id.

Ms. Ayalla also alleges that she was denied overtime pay, whereas other

workers received overtime pay for the same number of assignments she

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completed. Even construing this as an FLSA claim, Ms. Ayalla has not alleged

sufficient facts to proceed: she does not indicate that she worked in excess of

forty hours per week, or that the USPS knew she worked overtime and failed to

pay her, or that when she did work overtime that she was not paid for it. 

AFFIRMED. 

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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