United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
January 17, 2017, plaintiff Paula Moreno filed a Complaint
alleging four claims against defendant Kansas City Steak
Company, LLC. Doc. 1. In Counts One through Three, plaintiff
asserts claims under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. In Count Four, plaintiff
asserts a claim under the Kansas Workers Compensation Act,
Kan. Stat. Ann. § 44-501 et seq.
April 7, 2017, defendant filed a Motion for Partial Dismissal
of Plaintiff's Complaint. Doc. 6. In it, defendant
contends that the court must dismiss Counts One through Three
because plaintiff failed to exhaust her administrative
remedies. The court agrees. For the reasons explained below,
the court denies defendant's Motion for Partial Dismissal
of Plaintiff's Complaint and also grants plaintiff leave
to file an amended complaint. The amended pleading must
address the jurisdictional issues addressed in this Order.
worked for defendant from March 2009 to March 2015. In April
2012, plaintiff's work gloves caught in a conveyor belt,
injuring the smallest finger on her right hand to the point
that one of the joints was immovable. Plaintiff received
medical attention for her injury through workers compensation
benefits, and began using a splint at work per her
time, plaintiff's injury worsened. She began experiencing
intermittent muscle and tendon pain in her right hand, wrist,
and forearm. Eventually, the pain spread to her shoulder.
Worker's compensation again allowed plaintiff to seek
medical attention. But, when plaintiff's treating
physician advised her to see a hand specialist, defendant
refused and would not allow her to seek further treatment.
Plaintiff told defendant about her continuing pain and
discomfort several times between 2012 and 2014.
supervisor questioned whether plaintiff truly was injured and
the supervisor got angry with her. Plaintiff's supervisor
physically pushed plaintiff twice, “yelling at [her]
for using her left hand instead of her injured right
hand.” Doc. 1 at 5. Some time later, plaintiff went to
human resources to inform them of the pushing incident and to
complain, again, about her continuing injury. Plaintiff
alleges that human resources told her “that if she made
a report she would not be able to work for” defendant.
March 26, 2015, following another unpleasant interaction
between plaintiff and her supervisor, defendant terminated
plaintiff's employment. Believing she was terminated for
discriminatory reasons, plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission (“the EEOC”) and the Kansas Human
Rights Commission (“the KHRC”). Where her KHRC
Charge (“the Charge”) asks what “unlawful
employment practice” she alleged defendant employed in
violation of the Kansas Acts Against Discrimination, Kan.
Stat. Ann. § 44-1001 et seq., plaintiff checked
the boxes for race, color, national origin, disability, and
retaliation. Doc. 2 at 4.
Charge alleged only the following facts: she worked for
defendant from March 16, 2009, to March 27, 2015, and her
last position was in packaging; she is from Mexico; her son
has a disability; defendant knew about her son's
disability starting in March 2009; her supervisor physically
harassed her on December 23, 2014, by pushing her twice; and
that defendant terminated her employment on March 27, 2015,
because of her national origin and her “association
with [her] son, who has a disability.” Id. at
EEOC issued plaintiff a Right to Sue Letter on October 20,
2016. She then filed this lawsuit. Her Complaint alleges that
defendant violated the ADA by failing to accommodate her
disability (i.e., her injured finger), by
retaliating against her for seeking accommodations, and by
physically harassing her and disciplining her because of her
disability. The Complaint also alleges a retaliation claim
under the Kansas Workers Compensation Act.
has filed a Motion for Partial Dismissal. In its Motion,
defendant contends that plaintiff's ADA claims exceed the
scope of her Charge, and so plaintiff has failed to exhaust
her administrative remedies as the ADA requires. The court
considers the parties' arguments below.
Memorandum in Support its Motion (Doc. 7) and Reply (Doc. 10)
present a threshold procedural question that the court must
decide before it can begin to analyze the parties'
arguments. While defendant labels its motion to dismiss as
one under Federal Rule of Civil Procedure 12(b)(6), the legal
standards section of its Memorandum in Support begins with
the following propositions: “Federal courts are courts
of limited jurisdiction. Under the ADA, a plaintiff must
exhaust administrative remedies before filing suit. ‘In
the Tenth Circuit, exhaustion of administrative remedies is a
jurisdictional prerequisite to suit.' Thus, a district
court must dismiss unexhausted claims for lack of subject
matter jurisdiction.” Doc. 7 at 4 (citations omitted).
This language invokes Rule 12(b)(1). Defendant then
continues, mentioning-albeit briefly-the legal standard for a
Rule 12(b)(6) motion. Defendant's Reply does not clarify
its intentions. See Doc. 10 at 8 (“KCSC argues
that Plaintiff did not exhaust her administrative remedies at
all-whether her Charge was verified or not-with respect to
any claims based on her own disability, which clearly is a
jurisdictional requirement.” (citation omitted)). So,
defendant's papers alone do not permit the court to
discern whether defendant brings a Rule 12(b)(1) or Rule
court must determine which subdivision of the Rule applies
because “[d]ifferent standards apply to a motion to
dismiss based on lack of subject matter jurisdiction under
Rule 12(b)(1) and a motion to dismiss for failure to state a
claim under Rule 12(b)(6).” Muscogee (Creek) Nation
v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). If the
question presented by defendant's motion truly is a
jurisdictional one,  then the court may not reach any aspect of
the merits of plaintiff's Complaint under a Rule 12(b)(6)
motion. As the Supreme Court explained in Bell v.
[I]t is well settled that the failure to state a proper cause
of action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction. Whether the complaint
states a cause of action on which relief could be granted is
a question of law and just as issues of fact it must be