Opinion
CIVIL ACTION No. 03-2184-CM
December 16, 2003
MEMORANDUM AND ORDER
Plaintiff Margaret Quarles filed a Complaint naming as defendants "Kansas City Board of Public Utilities for the City of Kansas City, Kansas and its elected board (six member) and its General Manager, Leon Daggett / and the Unified Government of Wyandotte County." In her Complaint, plaintiff alleges discrimination through failure to promote, unequal terms and conditions of employment, retaliation, and an ongoing pattern and practice of discrimination all due to her race and national origin, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. This matter is before the court on defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (Doc. 2).
I. Standards
The court will dismiss a cause of action for failure to state a claim 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 him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maker v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff, Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
The court is mindful that plaintiff in this case appears pro se. Accordingly, while the court should liberally construe a pro se plaintiff's complaint, "the court should not assume the role of advocate, and should dismiss claims which are supported only by vague and conclusory allegations." Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).
II. Discussion
A. Untimely Response
Pursuant to Local Rule 6.1(e)(2), a party has 20 days in which to respond in opposition to a dispositive motion. Should a party fail to file a response within the time allowed, the underlying motion "will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D. Kan. Rule 7.4. Defendants filed their Motion to Dismiss on August 4, 2003. Plaintiff filed her response in opposition almost 50 days later on September 22, 2003. On this authority alone, the defendants' Motion to Dismiss chould be considered without opposition and granted. However, in light of plaintiff's pro se status, the court will consider plaintiff's response and accordingly rule on the merits.
B. Timeliness of EEOC Charge of Discrimination
Plaintiff alleges in paragraph 12 of the Complaint that the discriminatory conduct of which she complains occurred on or about May 25, 1989 through July 10, 2002. Plaintiff filed a Charge of Discrimination with the EEOC on July 8, 2002. Defendants argue that only those acts which occurred within 300 days of the filing of plaintiff's EEOC Charge are actionable.
In a deferral state such as Kansas, a plaintiff alleging a violation of Title VII must file an administrative charge with the EEOC within 300 days after the alleged unlawful conduct occurs. 42 U.S.C. § 2000e-5(e). This filing is a prerequisite to a civil suit under Title VII. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). The administrative remedy scheme is intended to give the employer prompt notice of the claim and to give the EEOC an opportunity for early conciliation or resolution. Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). A plaintiff who fails to raise a discrimination claim before the EEOC is precluded from raising that same claim in district court. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993).
As pled in plaintiff's Complaint, the alleged discriminatory conduct occurred on or about May 25, 1989 through July 10, 2002. Thus, any alleged unlawful employment practices that occurred prior to September 11, 2001 transpired outside the 300-day period. In her response brief, plaintiff contends that her claims are based upon "related continued and continuing employment actions" and should not, therefore, be dismissed as untimely.
"Under [the continuing violation] doctrine, a plaintiff may recover for incidents which occurred outside the statutory time limit if at least one instance of the alleged discriminatory practice occurred within the limitations period and the earlier acts are part of a continuing pattern of discrimination." Boyler v. Cordant Techs., Inc., 316 F.3d 1137, 1139 (10th Cir. 2003) (citations omitted). Plaintiffs Complaint alleges a pattern and practice of discrimination. Moreover, plaintiff alleges that discriminatory conduct occurred within the limitations period. Accepting plaintiff's allegations as true, the court cannot conclude, at this juncture, that plaintiff could prove no set of facts that would entitle her to relief under Title VII. The court denies defendant's motion to dismiss on this issue.
C. Proper Parties
Defendants argue that, of the parties plaintiff has sued as defendants, only the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government") can be characterized as a proper party defendant to this lawsuit. The court agrees.
1. Board of Public Utilities (BPU)
Defendant BPU contends that it is not a party that may sue or be sued. To determine this issue, the court first turns to Federal Rule of Civil Procedure 17(b), which states in pertinent part:
Capacity to Sue or be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held. . . .
Fed.R.Civ.P. 17(b). Thus, the court will look to Kansas law in considering whether the BPU has the capacity to be sued in these circumstances.
The BPU was created by Kansas legislative enactment, which provides in pertinent part, "In each city of the first class . . . which now or hereafter owns and operates a municipal waterworks plant and a municipal electric-light plant, there shall be an administrative agency known as the board of public utilities of such city. . . ." Kan. Stat. Ann. § 13-1220 (emphasis added). The powers and duties of the BPU, including the ability to sue and be sued, are defined by Kan. Stat. Ann. § 13-1223, which states in relevant part, "The board may sue and be sued but only in the name of and on behalf of the city except it shall have no standing in any court as a party plaintiff in any litigation against the city."
Kansas courts have held that the BPU is merely an agency of the city. Cross v. City of Kan. City, 230 Kan. 545, 549, 638 P.2d 933, 937 (1982). As such, "[a]bsent authority expressly given by statute or ordinance, an agency of a city does not have the capacity to sue or be sued as a separate entity; the city is a necessary and indispensable party to any action filed either by or against the agency." Murphy v. City of Topeka, 6 Kan. App. 2d 488, 491, 630 P.2d 186, 190 (1981). In this case, there is no such express authority given; rather, § 13-1223 explicitly provides that the BPU does not have the capacity to be sued as a separate entity. Accordingly, defendant BPU is hereby dismissed from this lawsuit.
2. Individual Defendants
Plaintiff does not clearly state whether she alleges a cause of action against the individually named defendants in their official or individual capacities. The court will address in turn whether plaintiff can maintain a cause of action against these defendants in either capacity.
The court first determines whether plaintiff can sue the BPU's elected board members and its general manager in their individual capacities. The Tenth Circuit has made clear that lawsuits brought under Title VII against individuals in their personal capacity must be dismissed. Specifically, the court has held, "Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate." Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993). Plaintiff's claims against these defendants in their individual capacities are therefore dismissed.
With respect to plaintiff's claims against these defendants in their official capacities, the Supreme Court has held that a suit brought against an individual in his official capacity is really "only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985). Thus, when a plaintiff names both a municipality and a municipal officer in his official capacity as defendants in an action, the suit against the officer is redundant, confusing, unnecessary, and therefore should be dismissed. Sims v. Unified Gov't of Wyandotte County/Kan. City, Kan., 120 F. Supp.2d 938, 945 (D. Kan. 2000) (citing Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (upholding dismissal of individual defendants sued in their official capacity in § 1983 case); Cleland v. City of Caney, No. 96-2338, 1997 WL 49136 (D. Kan. Jan. 24, 1997) (dismissing Title VII claim and § 1983 claim against individual defendants named in their official capacity)). Here, it is duplicative for plaintiff to sue both the Unified Government and its BPU elected officials and general manager in their official capacities. Thus, to the extent plaintiff has sued these defendants in their official capacities, plaintiff's claims are dismissed.
IT IS THEREFORE ORDERED that defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (Doc. 2) is granted in part and denied in part. The Unified Government of Wyandotte County/Kansas City, Kansas remains the only defendant in this lawsuit.