Opinion
Case No. 01-4179-RDR
September 26, 2002
MEMORANDUM AND ORDER
This is an employment discrimination action brought by the plaintiff pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Plaintiff has also asserted a claim under the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. This matter is presently before the court upon plaintiff's motion for enlargement of time.
Plaintiff contends in her complaint that she was the victim of discrimination while she was employed by the defendant and in her termination from that employment. Specifically, she alleges that she was subjected to a sexually hostile work environment during her employment in violation of Title VII. She also asserts that she was terminated from her employment based on a disability in violation of the ADA.
On April 4, 2002, the defendant filed a motion to dismiss. In the motion, the defendant contends that the court lacks subject matter jurisdiction over this case because it is not an employer as defined by Title VII of the ADA. The defendant points out that it does not employ the requisite number of employees required by Title VII and the ADA. In support of the motion, the defendant produced an affidavit from Tom Job, the administrator for the defendant. He states that the defendant has never employed fifteen or more employees during his employment.
On April 24, 2002, plaintiff filed a motion for an extension of time. She sought an extension until May 28, 2002 in which to file a response to defendant's motion to dismiss. Her counsel indicated that an extension was necessary due to his involvement in other cases. The court granted this motion on April 26, 2002.
Thereafter, on May 13, 2002, the magistrate held a status conference. During that conference, the magistrate allowed plaintiff an extension until June 28, 2002 to file a response to the defendant's motion. The magistrate limited plaintiff's discovery to the issue of the number of individuals employed by the defendant.
On June 28, 2002, after failing to conduct any discovery of the jurisdiction issue, plaintiff sought another extension of time. Plaintiff requested another month in which to conduct discovery and respond to the defendant's motion. Plaintiff's counsel again cited the press of other business as the reason for the continuance. The defendant objected to the plaintiff's motion. The court again granted the motion and allowed plaintiff until July 28, 2002 in which to conduct discovery and file her response.
On July 29, 2002, plaintiff filed yet another motion for extension of time. This time plaintiff sought an extension because her counsel had just learned she had filed a Chapter 13 bankruptcy. Her counsel indicated that he needed additional time in order to gain an authorization from the bankruptcy court allowing him to proceed in this case.
The court, this time with some reluctance, granted the plaintiff's motion. The court allowed plaintiff until September 13, 2002 to engage in discovery and a file a response to the defendant's motion to dismiss.
On September 13, 2002, plaintiff filed the instant motion. Plaintiff's counsel once again suggested that authorization had been sought from the bankruptcy court allowing him to proceed in this case. He further indicated that "[t]o date, no Order authorizing leave to prosecute this matter has been entered by the Bankruptcy Court." The defendant again objected to the requested extension. The defendant stated:
[T]he delay is severely prejudicing Defendant's ability to protect its interests as the events forming the basis of Plaintiff's lawsuit occurred over two years ago. Defendant has the right to put Ms. Cowan's employment with it in its past, and to move on with its current business.
After careful consideration of the arguments of the parties as well as the background in this case, the court finds that the instant motion must be denied. The court has already granted three previous extensions to the plaintiff. Plaintiff has also received an extension from the magistrate. Over five months have passed since the filing of the defendant's motion. During that period, plaintiff has undertaken no discovery on the issue presented in the motion. The court has given plaintiff every opportunity to engage in discovery and to respond to the defendant's motion. The court finds that no further extensions should be granted. In addition, plaintiff's counsel has advised the court that a motion to proceed in this case has been filed in the plaintiff's bankruptcy case. The court, however, has contacted the bankruptcy court and determined that no such motion has been filed. In light of all these circumstances, the court feels compelled to deny plaintiff's motion. With this decision, the court shall proceed to consider the defendant's motion to dismiss.
Title VII and the ADA apply only to employers who employ fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. 42 U.S.C. § 2000e(b); 42 U.S.C. § 12111(5)(A); see also Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999). An employer who employs fourteen or fewer individuals is not subject to the requirements of Title VII or the ADA. The record before the court fails to demonstrate that the defendant ever employed fifteen or more employees. Accordingly, the court lacks subject matter jurisdiction over the plaintiff's Title VII and ADA claims. See Owens v. Rush, 636 F.2d 283, 287 (10th Cir. 1980). The court must dismiss these claims.
With the dismissal of the federal claims, the court shall decline to exercise supplemental jurisdiction over the remaining state law claim. See 28 U.S.C. § 1367(c); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."). Accordingly, plaintiff's KAAD claim shall be dismissed without prejudice.
IT IS THEREFORE ORDERED that plaintiff's motion for enlargement of time (Doc. #19) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to dismiss (Doc. # 7) be hereby granted. Plaintiff's Title VII and ADA claims are hereby dismissed for lack of subject matter jurisdiction. Plaintiff's KAAD claim is hereby dismissed without prejudice.
IT IS SO ORDERED.