United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Plaintiff, a pro se litigant, brings this lawsuit alleging that he was denied retirement pay and medical benefits because of his race and in retaliation for complaining about discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (Doc. 1 at 6). This matter is before the Court on Defendants Kellogg Company and Mary Thomas' Motion to Dismiss (Doc. 8). For the reasons explained below, the Court converts defendants' motion to dismiss plaintiff's ERISA claims to a motion for summary judgment and provides notice to the parties that they may submit additional materials outside of the pleadings on or before February 1, 2015 for the Court's consideration on summary judgment. The Court also grants plaintiff leave to file an amended complaint for his Title VII claims against defendants by February 1, 2015. If plaintiff does not do so by that date, the Court will grant defendants' motion to dismiss plaintiff's Title VII claims for failure to state a claim.
I. Procedural Background
On August 28, 2014, defendants filed their Motion to Dismiss. Under D. Kan. Rules 6.1(d)(2) and 7.1(c), plaintiff was required to respond to defendants' motion within 21 days, or by September 18, 2014. When plaintiff failed to respond by this deadline, the Court issued a Notice and Order to Show Cause to plaintiff on November 14, 2014 (Doc. 11).
In that Order, the Court explained that under D. Kan. Rule 7.4(b), a party "who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum" unless there is a showing of excusable neglect. That rule also provides "[i]f a responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice." D. Kan. Rule 7.4(b).
Because plaintiff had failed to respond to defendants' Motion to Dismiss, the Court directed plaintiff to show cause, in writing, on or before December 1, 2014, why it should not consider and rule on defendants' motion as an uncontested one under D. Kan. Rule 7.4(b). The Court also ordered plaintiff to file any response to defendants' Motion to Dismiss on or before December 1, 2014.
On December 1, 2014, plaintiff filed a Response to the Motion to Dismiss (Doc. 12). Plaintiff failed to respond, however, to the Court's Notice and Order to Show Cause. Plaintiff has not shown cause, in writing, why the Court should not consider and rule on defendants' Motion to Dismiss as an uncontested one. Plaintiff neither explains why he failed to respond timely to defendants' Motion to Dismiss nor demonstrates that his failure amounts to excusable neglect. The Court recognizes that plaintiff brings this action pro se. But a plaintiff's pro se status does not excuse him from complying with the rules of the court or facing the consequences of noncompliance. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Thus, because plaintiff failed to respond timely to defendants' Motion to Dismiss, the Court may grant defendants' Motion to Dismiss as uncontested under D. Kan. Rule 7.4(b). Nevertheless, the Court also has considered defendants' motion on the merits. See Jones v. Corr. Corp. of Am., No. 10-3167-JTM, 2012 WL 3238190, at *3 (D. Kan. Aug. 7, 2012) ("Even while acknowledging its authority to grant uncontested motions pursuant to D. Kan. R. 7.4, a court may evaluate the merits of a motion."). After considering defendants' motion, the Court concludes that it is not proper to dismiss this case in its entirety on the record currently before the Court.
II. Factual Background
The following facts are alleged in the Complaint and viewed in the light most favorable to plaintiff. Because plaintiff brings this lawsuit pro se, the Court construes his Complaint liberally and holds it to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court does not assume the role of advocate for a pro se litigant. Id.
Plaintiff, who is African-American, worked for defendant Kellogg Company from 1973 until his retirement in March 2013. Plaintiff alleges he began receiving his retirement benefits in June 2013, but that the company withheld his retirement benefits in September 2013 because plaintiff had received an overpayment in short term disability benefits. Plaintiff contends that as of November 8, 2013, he had received all of his retirement benefits except for one month's payment. Plaintiff does not allege that he exhausted his administrative remedies under the Employee Retirement Income Security Act ("ERISA") for the one month's payment he did not receive.
Plaintiff also alleges that defendants have denied him medical benefits. Plaintiff claims that medical benefits are part of his retirement plan, but the company informed him that he was not eligible for medical benefits because he had waived this benefit. Plaintiff does not allege that he exhausted his administrative remedies under ERISA for his alleged denial of medical benefits.
Plaintiff brings a Title VII claim alleging that defendants have denied him retirement pay and medical benefits because of his race and in retaliation for complaining about discrimination. He claims that defendants have not treated similarly situated employees, who are not African-American, in the same manner as they have treated plaintiff.
III. Legal Standard
Defendants seek dismissal of plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted (Doc. 8). Defendants make two arguments supporting dismissal of this lawsuit: (1) plaintiff has failed to exhaust administrative remedies for an ERISA ...