Opinion
CIVIL ACTION No. 02-2019-GTV
November 6, 2002
MEMORANDUM AND ORDER
Plaintiff Felton Handley, a fifty-year-old African-American male, alleges that Defendant K.C. Auto Holdings, Inc. terminated his employment because of his race and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Plaintiff timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that his termination was based on race. The EEOC issued him a right-to-sue letter dated October 16, 2001. On January 16, 2002, ninety-two days later, Plaintiff filed this case.
The case is before the court on Defendant's motion to dismiss (Doc. 12). Defendant makes two arguments: (1) Plaintiff's age discrimination claim should be dismissed for failure to exhaust; and (2) Plaintiff's entire complaint should be dismissed because it was not timely filed. For the reasons stated below, the court reserves ruling on Defendant's first argument and denies Defendant's motion based on the second.
Conversion of Motion to Summary Judgment Motion
The parties spend much of their briefs arguing over whether Defendant's motion should be converted to a motion for summary judgment because Defendant purportedly attached an "Exhibit A" to its motion to dismiss. Exhibit A is supposed to be a true and correct copy of an EEOC Intake Questionnaire submitted by Plaintiff to the EEOC detailing his claims. According to Defendant, the Intake Questionnaire shows that Plaintiff only complained of race discrimination, not age discrimination, to the EEOC.
The court need not address the parties' arguments because no Exhibit A has been filed in this case. The court will consider Defendant's motion based only on the contents of Plaintiff's complaint.
Standard for Judgment
Defendant moves to dismiss Plaintiff's complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. A court may dismiss a complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. In the Tenth Circuit, a court lacks subject matter jurisdiction over a Title VII or ADEA case if the plaintiff fails to exhaust his administrative remedies before filing the case. Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (Title VII); Smith v. Bd. of County Comm'rs, 96 F. Supp.2d 1177, 1185 (D. Kan. 2000) (ADEA).
Rule 12(b)(6) permits a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court must view all reasonable inferences in favor of the plaintiff and the pleadings must be liberally construed. Id; Fed R. Civ. P. 8(f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fiztgerald, 457 U.S. 800 (1982).
ADEA Exhaustion
Defendant first argues that this court lacks subject matter jurisdiction over Plaintiff's age discrimination claim because Plaintiff does not allege that he exhausted his administrative remedies with respect to that claim.
29 U.S.C. § 626(d) provides that no civil action may be commenced by an individual under the ADEA unless a charge of discrimination has been filed within 300 days after the alleged unlawful practice occurred. After a plaintiff has complied with this administrative requirement, he or she may file suit. "The suit may include allegations of discrimination reasonably related to the allegations listed in the administrative charge, including new acts occurring during the pendency of the administrative charge." Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997) (citing Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988)). "[C]onsideration of complaints not expressly included in an EEOC charge is appropriate where the conduct alleged would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made." Martin v. Nannie The Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993). However, courts will disregard allegations not "reasonably related" to the listed allegations; to allow consideration "'would circumvent the administrative agency's investigatory and conciliatory role as well as deprive the charged party [of] notice of the charge.'" Smith v. Bd. of Pub. Utils., 38 F. Supp.2d 1272, 1284 (D. Kan. 1999) (quoting Harrell v. Spangler, Inc., 957 F. Supp. 1215, 1219 (D. Kan. 1997)) (internal quotation marks and citation omitted).
In this case, Plaintiff alleges in his complaint, "Plaintiff timely filed a charge of discrimination with the [EEOC] alleging violations of Title VII based on race." There is no allegation that Plaintiff filed an EEOC charge regarding his age discrimination claim. Furthermore, the age discrimination claim is not "reasonably related" to the race discrimination claim and would not fall within the scope of an EEOC investigation of his race discrimination claim. Cf. Stone v. W. Res., Inc., 217 F. Supp.2d 1188, 1193-94 (D. Kan. 2000) (holding that an untimely-filed amended EEOC charge alleging age discrimination did not "relate back" to the timely-filed original EEOC charge alleging sex discrimination). Absent an allegation by Plaintiff that he has exhausted his administrative remedies with respect to his ADEA claim, the court lacks jurisdiction over Plaintiff's claim. While the court could dismiss Plaintiff's ADEA claim on such basis, the court elects to give Plaintiff twenty days to amend his complaint. After seeing whether and how Plaintiff amends his complaint, the court will rule on this issue.
Timely Filing of Complaint
Defendant also agues that Plaintiff's entire complaint should be dismissed because he failed to timely file the complaint after receiving a "right to sue" letter from the EEOC. In order to state a claim under Title VII or the ADEA, a plaintiff must file a complaint within ninety days of receiving notice from the EEOC:
If a charge filed with the [EEOC] pursuant to subsection (b) of this section is dismissed by the [EEOC] . . . the [EEOC] shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . . .42 U.S.C. § 2000e-5(f)(1); see also 29 U.S.C. § 626(e).
Plaintiff alleges in his complaint, "The district director completed the administrative processing of the charge and provided Plaintiff a Notice of Right to Sue dated October 16, 2001, thus this complaint is filed timely." Plaintiff filed his complaint on January 16, 2002, ninety-two days after he alleged the right-to-sue letter was dated.
The problem with Defendant's argument is Plaintiff's "timeclock" did not begin running the day the right-to-sue letter is dated. The Tenth Circuit has held that the relevant date for determining whether a case is timely filed is the date of receipt of the EEOC notice. Jackson v. Cont'l Cargo-Denver, 183 F.3d 1186, 1189 (10th Cir. 1999). In the absence of evidence establishing that date, the court will apply either a three- or five-day mailing time presumption. Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001) ("Although this court has never explicitly addressed the issue of mailing time presumptions, we have implicitly sanctioned applying either a five-day or a three-day presumption.") (citing Witt v. Roadway Express, 136 F.3d 1424, 1429-30 (10th Cir. 1998)).
Regardless of the presumption applied, the court must assume at this time that Plaintiff's complaint was timely filed. Even under the three-day presumption, Plaintiff filed his complaint one day before the deadline. The court denies Defendant's motion to dismiss Plaintiff's claims on this basis.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion to dismiss (Doc. 12) is denied in part. The court reserves ruling on Defendant's remaining argument until a later date.
IT IS FURTHER ORDERED that Plaintiff may file an amended complaint within twenty days from the date of this order.
Copies of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.