Opinion
CIVIL ACTION No. 03-2183-KHV
September 5, 2003
MEMORANDUM AND ORDER
Greg Whitmire filed suit against his former employer, Allied Security, Inc. a/k/a Allied Security, LLC, alleging disability discrimination in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Missouri Human Rights Act ("MHRA"), Mo. Ann. Stat. § 213.010 et seq. This matter is before the Court on defendant's Motion To Dismiss (Doc. #6) filed July 1, 2003 and plaintiffs Response To Motion To Dismiss And In The Alternative Motion To Amend Complaint (Doc. # 11) filed July 14, 2003. For reasons set forth below, defendant's motion is sustained in part, but plaintiff is granted leave to amend.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers. Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). In reviewing the sufficiency of plaintiffs complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved.See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Standards For Motions To Amend
The Court shall freely give plaintiff leave to amend "when justice so requires." Fed.R.Civ.P. 15. Motions to amend are matters ofdiscretionfor the trial court, see Woolsey v. MarionLabs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991), and a refusal to grant leave to amend should normally be justified by factors such as futility, undue delay, undue prejudice to the non-moving party, or bad faith of the moving party. See Frank v. U.S. West. Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A district court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or otherwise fails to state a claim. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); Schepp v. Fremont County. Wyo, 900 F.2d 1448, 1451 (10th Cir. 1990).
Factual Background
Plaintiffs complaint, as supplemented by his proposed amended complaint, alleges the following facts:
Plaintiff suffers from a severe disability related to his back. On May 6, 2001, defendant hired plaintiff as a security guard. Plaintiff worked as a security guard for defendant at different locations for United Parcel Service ("UPS") and Federal Express. On December 1, 2001, defendant granted plaintiff s request to work part time because ofhis disability. On December 15, 2001, however, defendant replaced plaintiff in his part-time position with an individual who was not disabled. Defendant later assigned plaintiff on an as needed basis at a Federal Express location.
On February 10, 2002, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that defendant had discriminated against him because of his disability. Shortly thereafter, defendant assigned plaintiff to a UPS location and told him to seek employment with another security company. In April of 2002, plaintiff worked a shift for defendant at a Federal Express location, but his supervisor made plaintiff quit early due to his disability. On May 9, 2002, defendant terminated plaintiffs employment.
On September 23, 2002, the EEOC issued plaintiff a right-to-sue letter. Because the EEOC did not use the correct address, plaintiff did not receive the letter until shortly after the EEOC re-sent it on March 25, 2003.
Plaintiff filed suit on April 11, 2003. Plaintiff asserts claims for discrimination under the ADA and the MHRA.
Analysis
I. ADA Claim
The ADA requires plaintiff to file suit within 90 days of his receipt of a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) and 42 U.S.C. § 12117(a) (adopting Title VH filing deadline for ADA). The 90-day filing deadline is a condition precedent to suit, rather than a jurisdictional prerequisite. Calvert v. Roadway Exp., Inc., 32 Fed. Appx. 510, 512, 2002 WL234767, at *1 (10th Cir. 2002) (citing Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256, 259-60 (10th Cir. 1994)).
Here, the EEOC issued plaintiff a right-to-sue letter on his ADA claim on September 23, 2002. In his original complaint, plaintiff stated that he received his right-to-sue letter on March 25, 2003. See Complaint (Doc. #1) ¶ 20. Defendant argues that plaintiffs naked allegation is insufficient to overcome the presumption that he received the letter within three days after the EEOC sent it. Plaintiff argues that the allegation in the original complaint is sufficient, but he has nevertheless filed a proposed amended complaint which adds further allegations of equitable tolling including the fact that the EEOC mailed the original letter to the wrong address and did not re-mail the letter to the correct address until March 25, 2003. Defendant apparently concedes that the proposed amended complaint sufficiently alleges that plaintiff complied with the 90-day filing deadline under the ADA. Defendant also concedes that other than attorney fees and expenses associated with its motion to dismiss, it would not suffer prejudice if the Court allowed plaintiff to amend. Accordingly, the Court grants plaintiff leave to file his proposed amended complaint. Pursuant to D. Kan. Rule 15.1, plaintiff shall file his amended complaint no later than September 30, 2003.
Plaintiffs original complaint seems to sufficiently allege compliance with the 90-day filing deadline. Defendant maintains that the Court need not accept unreasonable inferences from the alleged facts such as delivery of a letter in the same city which takes six months. The Court need not reach this question, however, because plaintiffs amended complaint explains the reason for the delay. In addition, because the Court must accept the well-pleaded factual allegations in the complaint as true, defendant's objection is without merit.
Defendant asks for attorneys' fees and expenses incurred in bringing its motion to dismiss. Defendant does not specify the legal authority for its request, and because the allegations in plaintiffs original complaint are not clearly insufficient as a matter of law, the Court declines to condition amendment of plaintiff s complaint on his payment of defendant's attorneys' fees and expenses.
II. MHRA Claim
Defendant argues that plaintiffs MHRA claim is barred because he has not alleged (1) that he filed a charge of discrimination with the Missouri Commission on Human Rights or (2) that he received a right-to-sue letter from the MCHR. In his opposition brief, plaintiff does not address defendant's arguments. In addition, he has not alleged these two facts in his proposed amended complaint.
As to defendant's first argument, the Court notes that under Missouri law, a charge filed with the EEOC is deemed filed with the MCHR as of the date that the EEOC receives the charge. See Mo. Ann. Stat. § 213.075(2). Because plaintiff has alleged that he filed a charge with the EEOC, his MHRA claim is not subject to dismissal on this ground.
As to defendant's second argument, plaintiff has not alleged that he received a right-to-sue letter from the MCHR or why he was unable to obtain such a letter. The receipt of a notice of right to sue is a condition precedent to filing an MHRA claim. See Whitmore v. O'Connor Mgmt., Inc., 156 F.3d 796, 800 (8th Cir. 1998);Vankempen v. McDonnell Douglas Corp., 923 F. Supp. 146, 149 (E.D. Mo. 1996). The receipt of a right-to-sue letter from the EEOC is insufficient. See Whitmore, 156 F.3d at 800; Kelly v. Allied Healthcare Prods., Inc., 1996 WL 787420, at *4 (E.D. Mo. Dec. 5, 1996). The Court therefore dismisses plaintiffs MHRA claim without prejudice. On or before September 30, 2003, plaintiff may file an amended complaint which alleges that he has received a right-to-sue letter from the MCHR. See Whitmore, 156 F.3d at 800 (possible to cure defect by obtaining right-to-sue letter after filing case).
Defendant correctly notes that plaintiff should also allege sufficient facts to support the Court's exercise of jurisdiction over his state law claim.
IT IS THEREFORE ORDERED that defendant's Motion To Dismiss (Doc. #6) filed July 1, 2003 be and hereby is SUSTAINED in part. The Court dismisses plaintiffs MHRA claim without prejudice. On or before September 30, 2003, plaintiff may file an amended complaint which alleges that he has received a right-to-sue letter fromthe MCHR. Defendant's motion to dismiss is otherwise overruled as moot.
IT IS FURTHER ORDERED that plaintiffs Response To Motion To Dismiss And In The Alternative Motion To Amend Complaint (Doc. #11) filed July 14, 2003 be and hereby is SUSTAINED. Pursuant to D. Kan. Rule 15.1, plaintiff shall fife his amended complaint no later than September 30, 2003.