Opinion
Case No. 02-4082-JAR
November 4, 2002
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
Plaintiff Hermon Staten filed this action against Defendants Clarkson Construction Company, Inc. ("Clarkson"), Midwest Construction Company ("Midwest"), Payless ShoeSource, Inc. ("Payless"), and Stormont-Vail Health Care, Inc. ("Stormont-Vail"). Plaintiff filed this action pro se, filling out a form complaint used for Title VII, ADEA and ADA claims. Plaintiff sues under Title VII of the Civil Rights Act of 1964 based on employment discrimination, to wit: failure to employ, failure to promote and "harassment on each job that I have had and continued until I was fired on November 11th, 2001 and it began in 1996. And is continuing now." Attached to Plaintiff's form Complaint are handwritten "Complaint[s]" for each named Defendant. In these handwritten complaints Plaintiff pleads with more specificity the alleged harassment by his former employers, Clarkson, Midwest and Payless. In an "Addition" (Doc. 3) to his Complaint, Plaintiff alleges that Defendant Stormont-Vail committed medical malpractice on him, by forcing him to undergo an MRI without his consent, which allegedly caused magnetic particles to become embedded in his brain, resulting in monitoring of his thoughts in violation of his right of privacy. All Defendants except Clarkson have filed Motions to Dismiss. Clarkson has not yet been served, more than 120 days after Plaintiff filed his Complaint on May 20, 2002. Thus, Defendant Clarkson can be dismissed without prejudice, pursuant to Fed.R.Civ.P. 4(m) for Plaintiff's failure to effectuate service within 120 days.
42 U.S.C. § 12111 et. seq.
Motions to dismiss that raise many of the same grounds for dismissal have been filed by the other three defendants: Payless (Doc. 61), Stormont-Vail (Doc. 68), and Midwest (Doc. 99). One ground raised by these three defendants is that Plaintiff has failed to exhaust his administrative remedies, a jurisdictional prerequisite to filing a Title VII action. In the form Complaint, Plaintiff did not complete questions about when he filed a notice of intent with the Equal Employment Opportunity Commission ("EEOC") and when he received an EEOC notice of right to sue letter.
Indeed, Plaintiff admits that he did not file charges with the EEOC, explaining "I called them and was told there was nothing much that they could do." But, Plaintiff's phone conversation with someone at the EEOC does not constitute a formal complaint with the EEOC. And, although Plaintiff's Complaint alleges that he filed a complaint with the Kansas Human Resources Commission, Plaintiff fails to counter the affidavit of William V. Minner, Executive Director of the Kansas Human Rights Commission, who states that there is no record of Plaintiff having filed a formal complaint with that agency. Having failed to initiate, much less exhaust, his administrative remedies, Plaintiff's Title VII complaint must be dismissed under Rule 12(b)(1), as the Court lacks subject matter jurisdiction.
See Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 306 (1978) (stating that recourse must first be made to the Commission by an aggrieved individual, and the administrative remedies must be exhausted before recourse to the courts).
Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997) (Title VII) (citing Jones v. Runyon, 91 F.3d 1398, 1400 (10th Cir. 1996), cert. denied 520 U.S. 1115 (1997)); Seymore v. Shawver Sons, Inc., 111 F.3d 794, 799 (10th Cir.), cert. denied 522 U.S. 935 (1997).
Although he did not check the box for an ADA claim in his Complaint, Plaintiff claims in his response to the motions to dismiss (Doc. 74) that he also has an ADA claim because he was denied the opportunity to return to work because of his disability, to wit: he had magnetic particles embedded in his brain as a consequence of the cat scan forced upon him by Stormont-Vail. But, the American with Disabilities Act, like Title VII, has an administrative exhaustion requirement, so the Court has no jurisdiction over Plaintiff's ADA claim either.
42 U.S.C. § 12101 to § 12213
McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002) (citing Jones v. Runyon, 91 F.3d at 1399 n. 1; Khader v. Aspin, 1 F.3d 968, 970-71 (10th Cir. 1993)).
Moreover, Plaintiff's Title VII complaint must be dismissed under Rule 12(b)(6), for failure to state a claim. In the form Complaint, as well as the individual handwritten complaints against the separate defendants, Plaintiff alleges with specificity the dates, times and nature of incidents of harassment by the three defendants who are his former employers. But, Plaintiff never alleges that he is a member of a protected class under Title VII and never alleges that he was harassed on the basis of race, color or national origin. General workplace harassment that is not based on these grounds does not violate Title VII.
Plaintiff contends that the Court also has diversity jurisdiction of his claims against Stormont-Vail for medical malpractice, as well as in his claims of workplace harassment against the other defendants. But, Plaintiff fails his burden of showing that there is complete diversity of parties in this action. Assuming Plaintiff's assertions in a pleading (Doc. 107) are true, Plaintiff has citizenship in Kansas; Midwest is a citizen of Nebraska, its state of incorporation; Clarkson is a citizen of Missouri, its state of incorporation; Payless is a citizen of Missouri and Delaware, the two states of its incorporation; and Stormont-Vail is a citizen of Kansas, its state of incorporation. Thus, by Plaintiff's own admission, there is not complete diversity, as the Plaintiff and Stormont-Vail are both citizens of Kansas.
Finally, Plaintiff asserts that the Court has jurisdiction over its "ancillary claims." Plaintiff's claims are not ancillary within the meaning of Fed.R.Civ.P. 60(b), which defines "ancillary claims" as those in an independent and equitable action to attack a different federal court judgment. Plaintiff makes no allegation that his claims against these Defendants meet the definition of ancillary.
Because Plaintiff appears pro se, the Court must remain mindful of additional considerations. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, it [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Because Plaintiff failed to exhaust his administrative remedies, the Court has no subject matter jurisdiction of Plaintiff's Title VII claim and ADA claim. And, because the parties are not completely diverse, the Court has no jurisdiction of Plaintiff's medical malpractice claims against Stormont-Vail, or any state law claims against the other defendants. For all of these reasons, the Defendants' motions to dismiss are granted.
IT IS THEREFORE ORDERED that Defendants' motions to dismiss (Docs. 61, 68, and 99) are GRANTED and this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
United States District Court, D. Kansas