Opinion
Civil Action No. 99-2138-GTV.
July 28, 2000.
Sharetta Michele Martin, plaintiff, pro se.
Robert A. Olsen, Office of United States Attorney, Kansas City, KS, for United States Postal Service, Post Master General, William J. Henderson, Barbara Greene, Supervisor, and Mitch Bilyeu, Supervisor, defendants.
MEMORANDUM AND ORDER
Plaintiff filed this lawsuit on March 26, 1999 alleging that Defendants unlawfully discharged her from employment in violation of Title VII, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The case is before the court on Defendants' motion (Doc. 11) to dismiss or, in the alternative, for summary judgment. For the reasons stated below, the court grants Defendants' motion.
I. Discussion
In their motion, Defendants argue, among other things, that (1) Plaintiff's Title VII claims should be dismissed because Plaintiff failed "to timely file this lawsuit within the 90-day statutory filing period" and (2) Plaintiff's ADEA claims should be dismissed because Plaintiff "is not a covered individual under the statute."
A. Plaintiff's Title VII Claims
Title VII requires a plaintiff to bring a civil action within ninety days of the date upon which a "right-to-sue" letter is received from the Equal Employment Opportunity Commission ("EEOC").See Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996). Defendants argue that Plaintiff's Title VII claims should be dismissed because Plaintiff failed to "timely file this lawsuit within the 90-day statutory filing period." The court agrees.
Defendants' motion to dismiss Plaintiff's Title VII claims is made pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction. Compliance with Title VII's ninety-day requirement, however, is not a jurisdictional prerequisite; instead, it is a statutory precondition to suit that functions as a statute of limitations. See Biester, 77 F.3d at 1267. Defendants' motion, therefore, would have been brought more appropriately pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court construes Defendants' motion as one brought pursuant to Rule 12(b)(6).
If on a motion to dismiss brought pursuant to Rule 12(b)(6), "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Fed.R.Civ.P.] 56." Fed.R.Civ.P. 12(b); see Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998). In this case, both parties have submitted materials outside the pleadings that have not been excluded by the court and, therefore, the court treats the motion as one for summary judgment brought pursuant to Rule 56.
Generally, when a court decides to treat a motion to dismiss as one for summary judgment, it provides the parties with notice and an opportunity to provide additional filings before making a determination. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1440-41 (D. Kan. 1993) (citing Phillips USA, Inc. v. Allflex USA Inc., 150 F.R.D. 198 (D.Kan. 1993)). Where both parties submit "material beyond the pleadings in support of or opposing a motion to dismiss, [however,] the prior action on the part of the parties puts them on notice that the judge may treat the motion as a Rule 56 motion." Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987).
Summary judgment is appropriate if the evidence presented by the parties demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could resolve the issue either way. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. (citingAnderson, 477 U.S. at 248). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. See id.
The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party will not bear the burden of persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citingCelotex, 477 U.S. at 325). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts from which a reasonable jury could find in favor of the nonmoving party. See id.
It is undisputed in this case that Plaintiff received her "right-to-sue" letter on December 24, 1998, and that she therefore had ninety days, or until March 24, 1999, to file a lawsuit in federal court. It is also undisputed that Plaintiff filed this lawsuit on March 26, 1999, which was ninety-two days after she received her "right-to-sue" letter. Plaintiff contends that, despite her late filing, she should be permitted to proceed with her claims.
The requirement that a plaintiff bring a civil action within ninety days of the date upon which she receives a "right-to-sue" letter is a "requirement that, like a statute of limitations, is subject to . . . equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). "Equitable tolling may be appropriate where `the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting [her] rights. . . .'" Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995) (quoting Carlile v. South Routt Sch. Dist. RE 3-J, 652 F.2d 981, 985 (10th Cir. 1981)).
Plaintiff asserts that the ninety-day limitations period in her case should be equitably tolled because, during that period, she was "unable to initiate any actions on [her] behalf regarding this lawsuit, due to a medical problem which was not within [her] control." Plaintiff claims that she was experiencing a high-risk pregnancy that resulted in her being placed on bed rest in December of 1998. On January 17, 1999, she was admitted to a local hospital due to complications with the pregnancy, and on January 20, 1999, she prematurely delivered a stillborn fetus. Plaintiff was dismissed from the hospital the next day "in good condition." Plaintiff claims that, during the relevant ninety-day period, "[her] physical and mental state was unstable, due in part to the fact that this was [her] second premature delivery" and that "[she] was in no way mentally or physically capable of taking any of the necessary actions regarding the filing of this lawsuit."
Even accepting all of Plaintiff's assertions as true, the court determines that the ninety-day limitations period in this case should not be equitably tolled. While, under some circumstances, illness may serve to equitably toll the ninety-day limitations period, the evidence in this case shows that Plaintiff's illness did not prevent her "in some extraordinary way" from pursuing her legal rights during the relevant ninety-day period. Plaintiff states in her memorandum in opposition to Defendants' motion to dismiss:
I recall going to the clerk's office on [the 90th day], unaware that it was in fact my last day to file. After speaking with an employee, it was determined that I had filled out both sets of civil action paperwork and needed to decide which forms were appropriate for my complaint. I explained that I knew this lawsuit had to be filed somewhere within that time frame, however, I was unsure exactly what day, so she told me that I could take them with me, decide which one I needed to submit and bring them back. I left unaware that that particular day was my last day to file, and I returned again on [the 92nd day] as shown in the case file.
Plaintiff's statements make clear that, despite her trying circumstances, Plaintiff was capable of filing her complaint within the ninety-day limitations period. In fact, according to Plaintiff's statements, Plaintiff not only filled out the necessary paperwork for filing a complaint prior to the expiration of the ninety-day period, but she brought that paperwork to the courthouse.
The court determines that the untimeliness of Plaintiff's complaint in this case is due to a lack of diligence on the part of Plaintiff as opposed to any extraordinary circumstance that prevented Plaintiff from pursuing her legal rights. Any plaintiff who wishes to pursue a claim under Title VII must act responsibly and diligently in adhering to Title VII's strict procedural time requirements. While the court certainly sympathizes with Plaintiff's very trying circumstances during the ninety-day limitations period, the law mandates that the court not disregard "[p]rocedural requirements established by Congress for gaining access to the federal courts . . . out of a vague sympathy for particular litigants." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Plaintiff's Title VII claims are dismissed as untimely.
It appears from the record that Plaintiffs ADEA claims could also be dismissed as untimely. See Bergman v. Sprint/United Management Co., 981 F. Supp. 1399, 1401-02 (D. Kan. 1997) (dismissing plaintiffs ADEA claims as untimely where suit was not filed within ninety days of receipt of right-to-sue letter). In the motion, however, Defendants do not request that the court dismiss those claims as untimely.
B. Plaintiff's ADEA Claims
Defendants argue that Plaintiff's ADEA claims should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted because Plaintiff "is not a covered individual under the statute." The court agrees.Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle her to relief, see Conley v. Gibson, 355 U.S. 41, 45-46 (1957), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, see Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and all reasonable inferences from those facts are viewed in favor of the plaintiff, see Zinermon v. Burch, 494 U.S. 113, 118 (1990). Although the plaintiff need not precisely state each element of her claims, she must plead minimal factual allegations on the material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
To establish a prima facie case of age discrimination under the ADEA, Plaintiff must prove that she is a member of the protected age group, which is limited to individuals who are at least 40 years of age. See 29 U.S.C. § 631(a). Plaintiff alleges in her complaint that she was born on February 15, 1975, and that she was 22 years old at the time that the alleged discriminatory conduct occurred. It appears beyond a doubt, therefore, that Plaintiff is unable to prove any set of facts that would support a claim under the ADEA. Accordingly, Plaintiff's ADEA claims are dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' motion (Doc. 11) is granted, and Plaintiff's complaint is dismissed.
The case is closed.
IT IS SO ORDERED.