Opinion
CIVIL ACTION No. 02-2601-KHV
May 27, 2003.
MEMORANDUM AND ORDER
Angela Cady filed suit against her former employer, Golden Arch of Kansas, Inc., alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. This matter is before the Court on Defendant's Motion To Dismiss (Doc. #4) filed March 13, 2003 and Plaintiff's Response To Defendant's Motion To Dismiss And Plaintiff's Motion For Leave to File First Amended Complaint (Doc. #9) filed April 4, 2003. For reasons set forth below, defendant's motion to dismiss is sustained and plaintiff's motion to amend is overruled.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). In reviewing the sufficiency of plaintiff's complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of her claims, she must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Standards For Motions To Amend
The Court shall freely give plaintiff leave to amend "when justice so requires." Fed.R.Civ.P. 15. Motions to amend are matters of discretion for the trial court, see Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991), and a refusal to grant leave to amend should normally be justified by factors such as futility, undue delay, undue prejudice to the non-moving party, or bad faith of the moving party. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A district court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or otherwise fails to state a claim. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); Schepp v. Fremont County, Wyo., 900 F.2d 1448, 1451 (10th Cir. 1990).
Factual Background
Plaintiff's complaint, as supplemented by her proposed amended complaint, alleges the following facts:
Plaintiff is a 19-year old woman. In April of 1998 when she was 14 years old, defendant employed plaintiff for approximately one month. On May 21, 2002, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that defendant discriminated against her because of her sex. On September 5, 2002, the EEOC issued plaintiff a right to sue letter. Plaintiff filed suit on December 4, 2002. Plaintiff asserts a single claim for sex discrimination under Title VII.
Analysis
Defendant seeks dismissal based on the statute of limitations. Timely filing of a charge with the EEOC is a prerequisite to suit under Title VII. See Jones v. Runyon, 91 F.3d 1398, 1399 n. 1 (10th Cir. 1996), cert. denied, 520 U.S. 1115 (1997). To be in compliance, plaintiff must file an EEOC charge within 300 days of defendant's allegedly unlawful action. 42 U.S.C. § 2000e-5(e)(1).
In the instant case, plaintiff filed her EEOC charge more than four years after the alleged discrimination. When the face of the complaint shows that plaintiff filed the action beyond the applicable statute of limitations, plaintiff must allege facts sufficient to show that the limitations period should be tolled. See Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) (when dates in complaint make clear that right sued upon has been extinguished, plaintiff has burden of establishing factual basis for tolling); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509-10 (1st Cir. 1998); LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1107 (6th Cir. 1995); see also Jackson v. City of Kansas City, Kan., No. 99-2344-KHV, 2000 WL 574986, at *2 (D.Kan. Apr. 6, 2000) (on Rule 12(b)(6) motion, court cannot consider allegations or evidence of tolling outside pleadings). Because plaintiff has not done so in her original complaint, the Court dismisses it.
Plaintiff argues that her action is timely under K.S.A. § 60-515(a) which tolls the claims of minors until one year after the individual reaches the age of 18. Accordingly, plaintiff seeks to amend her complaint to add her age as of the date of the alleged discrimination. Plaintiff's proposed amendment is futile because state tolling and savings provisions do not apply where Congress has provided a federal statute of limitation for a federal claim. See Simons v. Southwest Petro-Chem, Inc., a Div. of Witco Chem. Corp., 28 F.3d 1029, 1030 (10th Cir. 1994); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991). In particular, the Tenth Circuit has held that Title VII claims are not governed by state tolling or savings statutes. See Simons, 28 F.3d at 1030-31; Brown, 926 F.2d at 961. The Court therefore sustains defendant's motion to dismiss and overrules plaintiff's motion to amend.
Section 60-515(a) provides in part:
Except as provided in K.S.A. 60-523, if any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person's natural life, such person shall be entitled to bring such action within one year after the person's disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.
Plaintiff does not argue that federal principles of equitable tolling apply, but the Court nevertheless rejects any equitable tolling theory based on the present record. The Tenth Circuit narrowly construes equitable exceptions to Title VII time limitations. See Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996). A Title VII time limit will be tolled "only upon a showing of `active deception' where, for example, the plaintiff has been `actively misled' or `lulled into inaction by her past employer, state or federal agencies, or the courts.'" Simons, 28 F.3d at 1031 (quoting Johnson v. United States Postal Serv., 861 F.2d 1475, 1480-81 (10th Cir. 1988)) (further quotations and citations omitted).
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss (Doc. #4) filed March 13, 2003 be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that plaintiff's motion to amend (Doc. #9) filed April 4, 2003 be and hereby is OVERRULED.