Opinion
No. 02-4065-SAC
August 1, 2002
MEMORANDUM AND ORDER
The case comes before the court on the defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for the reason that the plaintiff failed to file this action within ninety days of his receipt of the right-to-sue letter. (Dk. 7). When the plaintiff failed to file a timely response to this motion, the court issued an order for the plaintiff to show cause by July 18, 2002, why the defendants' motion should not be granted as uncontested pursuant to D. Kan. Rule 7.4. (Dk. 9). On July 16, 2002, the clerk of the court received and filed a two-page document consisting of six paragraphs of allegations. (Dk. 11). Only one of those paragraphs appears to address the defendant's motion and the court's show cause order:
This motion is to try and show cause: about my complaint against Lawrence Public School and Gerald Bulleigh. My right to sue letter from E.E.O.C. were mail on 4/28/2000. I also mailed with my right to sue letter a notice asking for a court appointed attorney. However, the proper papers were fill out and mail to clerk's office before statute of limitation ran out. Witch would have been on 5/05/2000. I receive right to sue letter on 02/05/2000. Judge Crow, it do not appear you receive my packet.
(Dk. 11).
The plaintiff alleges race and age discrimination while employed with Unified School District No. 497 and supervised by Gerald Bulleigh in violation of the federal provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and the Age Discrimination in Employment Act, ("ADEA") 29 U.S.C. § 621, et seq., and the state counterparts of Kansas Acts Against Discrimination ("KAAD"), K.S.A. 44-1001, et seq. and Kansas Age Discrimination in Employment Act ("KADEA"), K.S.A. 44-1111, et seq. 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 42 U.S.C. § 2000e-5(f)(1). The ADEA contains a substantively similar requirement that the civil action must be brought within ninety days of the EEOC's notice. See 26 U.S.C. § 626(e). The ninety-day period "generally commences on the date that the complainant actually receives the EEOC right to sue notice." Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1267 (10th Cir. 1996) (citation omitted). This ninety-day filing requirement is not jurisdictional in nature, but it functions like a statute of limitations that may be subject to waiver, estoppel, or equitable tolling. Id.
The EEOC's right-to-sue letter is dated February 1, 2000, and the plaintiff concedes in his written response that he received this letter on February 5, 2000. The ninety-day period expired on May 5, 2000, but the instant lawsuit was not filed until April 25, 2002, almost two years later. In his response to the show cause order, the plaintiff says he mailed the right-to-sue letter, "a notice asking for a court appointed attorney," and "the proper papers" to the clerk's office before the statute of limitations expired. (Dk. 11). The plaintiff, however, submits nothing in proof of this bare assertion. More importantly, the plaintiff never says that he filed any complaint on or before May 5, 2000. Merely forwarding a right-to-sue letter and other "proper papers" to the clerk's office is not commencing a lawsuit. Absent any proof that the plaintiff's current action is timely commenced or that the doctrines of waiver, estoppel or equitable tolling apply here, the court must dismiss the plaintiff's claims for relief under Title VII and ADEA. Though it does appear that the plaintiff did not exhaust his administrative remedies under KAAD and KADEA, the court declines to exercise supplemental jurisdiction over these state law claims.
IT IS THEREFORE ORDERED that the defendants' motion to dismiss is granted on the plaintiff's Title VII and ADEA claims;
IT IS FURTHER ORDERED that the plaintiff's KAAD and KADEA are dismissed without prejudice, as the court declines to exercise supplemental jurisdiction over them.