United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff Teresa Halsey filed this employment discrimination action against her former employer, Defendant United Parcel Service ("UPS"), alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), and age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). This matter is before the Court on Defendant's Motion to Dismiss (Doc. 5), Plaintiff's Motion for Leave to File Her Response to Defendant's Motion to Dismiss Out of Time (Doc. 9), and Plaintiff's Motion for Leave to File Sur-reply (Doc. 12). Plaintiff's unopposed motion to respond one day out of time is granted. For the reasons explained in detail below, Plaintiff's motion for leave to file a sur-reply is granted in part and denied in part; Defendant's motion to dismiss is granted with respect to Plaintiffs claims of age and sex discrimination, and denied with respect to her claim of retaliation.
I. Factual Background
Plaintiff has filed several charges with the Equal Employment Opportunity Commission ("EEOC"). According to the Amended Complaint, she filed a charge of discrimination in 2008 but did not end up filing suit. In October 2010, she filed a second charge of discrimination; a right to sue letter was issued in April 2012, but she declined to file a lawsuit within the requisite time period. On October 4, 2012, Plaintiff and a coworker were involved in a verbal disagreement and Plaintiff was terminated for violating UPS's workplace violence policy. Prior to her termination, UPS had unfairly scrutinized her job performance compared to younger, male counterparts.
Plaintiff submitted an EEOC Intake Questionnaire on March 17, 2013, on which she marked the boxes for "retaliation, " "sex, " and "age." Two days later, on March 19, 2013, Plaintiff filed a Charge of Discrimination ("2013 Charge"), on which she checked only the box for "retaliation." The narrative portion of this charge states:
On or about October 4, 2012, my coworker began yelling at me and threatening me. I requested to be moved from my work area. My supervisor removed me from the area and questioned me about the incident. I was then notified that I was discharged for threatening my coworker. I believe I was discharged for my charge of discrimination in violation of Title VII of the Civil Rights Act of 1964 as amended.
On March 12, 2014, Plaintiff filed an Amended Charge of Discrimination ("2014 Amended Charge"), in which she marked the boxes for "sex" and "retaliation." The narrative portion of the Charge included the same language as the 2013 Charge and inserted the following typeface language just before the original narrative: "I was employed by the above named employer from January 1986 until on or about October 4, 2012, most recently as a Strong Side Pick-off Sorter. I filed a charge of discrimination with the EEOC in October 2012 (XXX-XXXX-XXXXX) which was closed in April 2012." Plaintiff also interlineated the narrative with handwriting that clarified that she "repeatedly" requested to be moved from her work area, and that "after final decision of termination" she "received a notice that [she] was fired for a cuss word not work place violence." On March 28, 2014, Plaintiff received a right to sue letter from the EEOC. The cover letter also advises that the EEOC had determined that the 2014 Amended Charge was untimely.
Plaintiff filed this action on June 30, 2014, within ninety days of the 2014 right to sue letter. The original Complaint alleged one claim of retaliation under Title VII. Plaintiff filed an Amended Complaint on July 30, 2014, alleging claims of discrimination and retaliation under Title VII on the basis of sex, and of discrimination under the ADEA. She alleges in the Amended Complaint that she submitted her Intake Questionnaire on March 17, 2013, checking the boxes for "retaliation, " "sex, " and "age." With regard to the ADEA claim, Plaintiff alleges that she was one of the oldest two employees in her department, that similarly situated employees under age 40 were not terminated when they engaged in conduct similar to Plaintiff's, and that she sustained damages as a direct and proximate result of Defendant's conduct.
II. Plaintiff's Motion for Leave to File Sur-reply
Defendant moved to dismiss the Amended Complaint, arguing that (1) the age discrimination claim was not administratively exhausted because it was not included in the 2014 Amended Charge; (2) the sex discrimination claim was not timely exhausted; and (3) the retaliation claim fails to allege sufficient facts to state a plausible claim for relief. Plaintiff responded and argued that her 2013 Intake Questionnaire, which marked age, sex, and retaliation, sufficed to administratively exhaust all claims, and further argued that the Complaint stated a plausible claim of retaliation. In reply, Defendant argued that because the Intake Questionnaire was not verified, it could not serve as the basis for administrative exhaustion. Plaintiff has moved for leave to file a sur-reply. Plaintiff argues that Defendant did not raise the verification requirement for the Intake Questionnaire until the reply, so she should be granted leave to respond to that argument in a sur-reply.
"[I]f the court relies on new materials or new arguments in a reply brief, it may not forbid the nonmovant from responding to those new materials." The Court finds that the grounds stated in Plaintiff's motion for leave as to the Intake Questionnaire are appropriate for granting leave to file a sur-reply. Plaintiff correctly notes that the Amended Complaint referenced the Intake Questionnaire and should have put Defendant on notice that Plaintiff would rely on the Intake Questionnaire as the charging document for purposes of administrative exhaustion. While the Court finds it understandable that Defendant would not address this issue until it was asserted by Plaintiff in response given that Plaintiff also references her "Charges" elsewhere in the Complaint, the Court will allow Plaintiff to respond to the arguments raised for the first time in the reply on this issue.
However, the Court notes that the proposed Sur-reply attached to the motion for leave also addresses the merits of the retaliation claim, a wholly separate issue. The Court will grant Plaintiff's motion insofar as it addresses the verification issue, but no showing has been made that a sur-reply is appropriate on any of the other issues addressed in the reply. Plaintiff shall file the proposed sur-reply for the record, striking the last section on the retaliation claim.
III. Motion to Dismiss
A. Subject Matter ...