United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Plaintiff filed this lawsuit pro se on August 26, 2014 (Doc. 1), alleging that defendants International Paper Co., Wal-Mart Stores, Inc. ("Walmart"), and "KC Bindery" discriminated against her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"). This matter comes before the Court on defendant International Paper's Motion to Dismiss (Doc. 11) and defendant Walmart's Motion to Dismiss (Doc. 12). For the following reasons, the Court grants both motions and dismisses this lawsuit in its entirety.
I. Facts and Procedural Background
This lawsuit is one of five that plaintiff filed pro se in this Court in 2014. See also Davenport v. Walmart Stores, Inc., Case No. 14-2124-JAR-JPO; Davenport v. KC Bindery and Mailing, Case No. 14-2196-CM-JPO; Davenport v. U.S. Dep't of the Treasury Bureau of Fiscal Servs., Case No. 14-2527-CM-TJJ; Davenport v. Soc. Sec. Office, Case No. 14-2528-JTM-GLR. These cases share similar characteristics. Among other things, the pleadings in each case are sparse and difficult to understand, and plaintiff frequently has failed to respond to motions or court orders. The Court already has dismissed three of plaintiff's lawsuits. Still, the Court considers and decides this case on its own merits.
Plaintiff's Title VII, ADA, and ADEA claims allege discrimination occurring from "April 1975 thru May 1995." Doc. 1 at 2. She alleges that "[t]he Bosses making you have sex with them to keep the job. I bid[d]ed for the job to have gas for my house, lights, food, automobile, clothe[s], just a requ[i]re[d] life. I had been there over 10 years the pay was very sour. My house no good." Doc. 1 at 3. Plaintiff does not identify who the "Bosses" are. Also, she alleges no particular disability to support her ADA claim, and when the Court's form complaint asked her to explain how defendants denied her request for a disability accommodation, she wrote: "Get my name out of Cotton Cortez and I have not and will not ever be married." Doc. 1 at 4. These allegations are representative of those in her Complaint.
Plaintiff sought leave to proceed in forma pauperis, which the Court granted, and the U.S. Marshal's Service served all three defendants in September 2014 (Docs. 7-9). To date, defendant KC Bindery has not answered plaintiff's lawsuit or filed any responsive motion. Defendants International Paper and Walmart responded to this lawsuit by filing motions to dismiss on October 2, 2014 and October 7, 2014. Under this Court's Local Rules, plaintiff's responses to defendants' motions were due by October 23, 2014 and October 28, 2014. D. Kan. Rule 6.1(d)(2) ("Responses to motions to dismiss... must be filed and served within 21 days."). Plaintiff did not file responsive briefs by these deadlines, and she still has not responded. D. Kan. Rule 7.4(b) provides that "[i]f a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the Court will consider and decide the motion...."
While plaintiff did not file briefs responding to the two motions to dismiss, she filed three "Exhibits in Support" (Doc. 14) of her Complaint on October 17, 2014. This filing contains copies of three Charges of Discrimination ("KHRC Charges") that she had filed on October 16, 2014 against the three defendants with the Kansas Human Rights Commission ("KHRC"). The KHRC Charges assert that each defendant discriminated against plaintiff based on her race, color, sex, national origin, age, and disability, and that each defendant retaliated against her. Plaintiff is proceeding pro se, so the Court will consider this filing when evaluating the two motions to dismiss pending here. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (instructing courts to construe pro se pleadings liberally).
Defendants International Paper and Walmart argue that the Court should dismiss this lawsuit under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. According to these defendants, plaintiff fails to prove that she exhausted the administrative remedies on her employment discrimination claims, a prerequisite to bringing suit in the Tenth Circuit. Alternatively, International Paper and Walmart argue that the Court should dismiss the claims against them under Rule 12(b)(6) for failing to state a claim upon which relief can be granted.
II. Administrative Remedies under Title VII, the ADA, and the ADEA
Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing a lawsuit in federal court under Title VII, the ADA, and the ADEA. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1310, 1317 (10th Cir. 2005). "Title VII plaintiffs must clear three procedural hurdles before bringing suit in federal court: (1) file a discrimination charge with the EEOC, (2) receive a right-to-sue letter from the EEOC, and (3) file suit within ninety days of receiving the letter." Kinney v. Blue Dot Servs. of Kan., 505 F.Appx. 812, 814 (10th Cir. 2012). Plaintiffs asserting ADA claims must satisfy the same three requirements. Shikles, 426 F.3d at 1309 (holding that the procedural requirements of Title VII and the ADA "must be construed identically").
The exhaustion requirements for ADEA claims differ. Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164, 167-68 (2d Cir. 1998) ("There are important differences between the ADEA and Title VII of the Civil Rights Act of 1964... with regard to prerequisites to bringing suit."). Unlike Title VII and the ADA, the ADEA does not require a plaintiff to receive a right-to-sue letter from the EEOC before filing an ADEA lawsuit in court. Rather, ADEA plaintiffs exhaust their administrative remedies by filing an administrative charge and then waiting at least 60 days before filing suit. See 29 U.S.C. § 626(d) ("No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission."); see also Hall v. FlightSafety Int'l, Inc., 106 F.Supp.2d 1171, 1183-84 (D. Kan. 2000) (dismissing the plaintiff's ADEA claims because he had filed his amended complaint before 60 days had passed from the day he filed his second charge with the EEOC).
Defendants International Paper and Walmart argue that plaintiff fails to demonstrate that she exhausted her administrative remedies for any of her three claims, and therefore the Court lacks subject matter jurisdiction over this lawsuit. "A plaintiff invoking the court's subject matter jurisdiction must allege in [her] pleadings the facts essential to show jurisdiction' and, if challenged, must support those allegations by a preponderance of the evidence." Pretlow v. Garrison, 420 F.Appx. 798, 802 (10th Cir. 2011) (quoting Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (quotation omitted)); see also United States v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). Thus, an employment-discrimination plaintiff must "plead and show'" exhaustion. Pretlow, 420 F.Appx. at 802-803 (quoting Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002)); see also Greenlee v. U.S. Postal Serv., 247 F.Appx. 953, 955 (10th Cir. 2007) (noting exhaustion pleading requirement in connection with several employment claims, including Title VII). Courts "may not assume that a plaintiff can establish subject matter jurisdiction; it is the plaintiff's burden to prove it." Kinney, 505 F.Appx. at 814. "[W]hen considering a Rule 12(b)(1) motion to dismiss, the court may weigh the evidence and make factual findings." Los Alamos Study Grp. v. U.S. Dep't of Energy, 692 F.3d 1057, 1063-64 (10th Cir. 2012).
Plaintiff's Complaint makes bare allegations that she exhausted her administrative remedies. She alleges that she filed charges with the EEOC and the KHRC, that she has received a right-to-sue letter on those claims, and that she waited 60 days after filing her age discrimination charge before bringing this lawsuit. Defendants challenge these allegations, and plaintiff thus "must support [them] by a preponderance of the evidence." Pretlow, 420 F.Appx. at 802-03. The Court has before it just two pieces of evidence that could show that plaintiff exhausted her administrative remedies. First, in lieu of responsive briefs to the motions to dismiss, plaintiff filed copies of the three KHRC Charges she filed on October 16, 2014. Second, defendant Walmart attached to its motion to dismiss a charge plaintiff filed with the EEOC (the "EEOC ...