United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
11, 2017, Elizabeth Miquelon filed a complaint asserting that
the University of Kansas Hospital Authority engaged in
disability discrimination and violated the Family Medical
Leave Act (“FMLA”). Complaint For
Damages (Doc. #1). Specifically, she claims failure to
accommodate, termination and retaliation in violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq., as amended by ADA
Amendments Act of 2008 (“ADAAA”) (Counts 1, 2 and
3) and interference and retaliation in violation of the FMLA,
29 U.S.C. §§ 2601 et seq., (Counts 4 and
5). This matter is before the Court on Defendant
University Of Kansas Hospital Authority's Motion To
Dismiss Counts I, II And III Of Plaintiff's Complaint, Or
In The Alternative, To Stay This Matter Until Plaintiff Has
Exhausted Administrative Remedies (Doc. #24) filed
August 29, 2017. Plaintiff opposes this motion.
Plaintiff's Suggestions In Opposition To
Defendant's Motion To Dismiss (Doc. #29) filed
September 19, 2017. For reasons below, the Court overrules
courts must have a constitutional basis to exercise
jurisdiction because they are courts of limited jurisdiction.
Devon Energy Prod. Co., v. Mosaic Potash, 693 F.3d
1195, 1201 (10th Cir. 2012). The party seeking to invoke
federal jurisdiction bears the burden of establishing that
jurisdiction is proper. Id.
a Rule 12(b)(1), Fed. R. Civ. P., motion to dismiss for lack
of subject matter jurisdiction takes one of two forms: a
facial attack or a factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). Here,
defendant challenges the facts on which subject matter
jurisdiction depend, i.e. whether plaintiff
exhausted administrative remedies on her ADAAA claims.
Memorandum In Support Of Defendant University Of Kansas
Hospital Authority's Motion To Dismiss Counts I, II And
III Of Plaintiff's Complaint, Or In The Alternative, To
Stay This Matter Until Plaintiff Has Exhausted Administrative
Remedies (Doc. #25) filed August 29, 2017 at 1-2. When
reviewing a factual attack on subject matter jurisdiction,
the Court has wide discretion to allow affidavits, other
documents and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).
Holt, 46 F.3d at 1003.
And Procedural Background
corporate body created by Kansas statute, defendant provides
medical services in Kansas City, Kansas. Complaint
(Doc. #1), ¶ 3. Plaintiff, a resident of Kansas City,
Missouri, began working for defendant as a registered nurse
in 1998. Id., ¶¶ 3, 19. From August of
2015 through February of 2016, plaintiff took multiple weeks
of FMLA leave for health and family issues. See id.,
¶¶ 27, 46-47. In December of 2015, defendant
transferred plaintiff to a different location and required
her to complete an orientation program. Id.,
¶¶ 34-38. In January of 2016, plaintiff told
defendant's human resources department that she had been
treated unfairly and that she believed defendant was
retaliating against her. Id., ¶¶ 48, 51.
Defendant terminated plaintiff's employment on February
4, 2016. Id., ¶ 57.
4, 2016, plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”)
and the Kansas Commission on Human Rights
(“KCHR”). Id., ex. 1. More than 180 days
after she filed her charge, plaintiff requested a
right-to-sue letter from the EEOC. Plaintiff's
Suggestions In Opposition (Doc. #29) at 7. The EEOC
forwarded plaintiff's request to the office of the
Attorney General of the United States. Id. On
February 16, 2017, the Acting Assistant Attorney General
issued plaintiff a right-to-sue letter. Complaint
(Doc. #1), ex. 2. On May 11, 2017, plaintiff filed her
complaint in this Court. Id.
filing an employment discrimination suit in federal court,
plaintiff must exhaust administrative remedies. Apsley v.
Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012); 42
U.S.C. § 2000e-5(f)(1); see 42 U.S.C. §
12117 (incorporating Section 2000e-5 as exhaustion
procedure). If plaintiff fails to exhaust, a federal court
lacks subject matter jurisdiction to entertain discrimination
claims under the ADAAA. Andrews v. GEO Group, Inc.,
288 F. App'x 514, 517 (10th Cir. 2008). Defendant argues
that the Court lacks subject matter jurisdiction because
plaintiff failed to properly exhaust administrative remedies.
See Memorandum In Support (Doc #25) at 1-2. In
particular, defendant complains that plaintiff received her
notice of right-to-sue letter from the Attorney General
instead of the EEOC. See id.
exhaust administrative remedies, plaintiff generally must
present her claim to and receive a right-to-sue letter from
the proper agency. If respondent is not “a government,
governmental agency or political subdivision, ”
plaintiff must present her claim to and receive her
right-to-sue letter from the EEOC or authorized state agency
(in Kansas, the KHRC). 29 C.F.R. § 1601.28(a)(1). If
respondent is “a government, governmental agency or
political subdivision, ” plaintiff must present her
claim to and receive her right-to-sue letter from the
Attorney General of the United States. Hiller v. Okla. ex
rel. Used Motor Vehicle and Parts Com'n, 327 F.3d
1247, 1251 (10th Cir. 2003); 29 C.F.R. § 1601.28(a)(2).
After filing her charge, plaintiff can demand a right-to-sue
letter if the agency does not file a civil action or enter
into a conciliation agreement within 180 days. 42 U.S.C.
§ 2000e-5(f); Walker v. United Parcel Serv.,
Inc., 240 F.3d 1268, 1271 (10th Cir. 2001); see
Stone v. Dep't of Aviation, 290 F. App'x 117,
122 (10th Cir. 2008) (relying on Title VII case law to
interpret ADA enforcement question). After 180 days, on
proper request, agencies must issue a right-to-sue letter. 42
U.S.C. § 2000e-5(f).
4, 2016, plaintiff filed charges with the EEOC and the KCHR.
Complaint (Doc #1), ¶ 13, ex. 1
(plaintiff's charge). More than 180 days later, the EEOC
had not instituted a civil suit or entered into a
conciliation agreement with defendant. Therefore, pursuant to
Section 2000e-5(f), plaintiff requested a right-to-sue letter
from the EEOC. Plaintiff's Suggestions In
Opposition (Doc. #29) at 7. The EEOC did not grant this
request, but forwarded it to the Attorney General's
office. Id. On February 16, 2017, plaintiff received
a right-to-sue letter from the Acting Assistant Attorney
General. Complaint (Doc. #1), ex. 2 (right-to-sue
from Attorney General's office). In part, the notice
stated that plaintiff “filed the above charge with the
[EEOC], and more than 180 days have elapsed since the date
the Commission assumed jurisdiction over the charge.”
Id., ex. 2.
EEOC was obligated to issue plaintiff a right-to-sue letter,
but “plaintiff should not be penalized for the inaction
of the EEOC.” Dupree v. Hous. Auth. of Kansas City,
Kan., No. 89-2244-V, 1991 WL 12819, at *5 (D. Kan. Jan.
11, 1991); see Occidental Life Ins. Co. of Cal. v.
E.E.O.C., 432 U.S. 355, 366 (1977) (“An aggrieved
person unwilling to await the conclusion of extended EEOC
proceedings may institute a private lawsuit 180 days after a
charge has been filed”); see also Benton v. South
Fork, 587 F. App'x 447, 450-51 (10th Cir. 2014).
Even if plaintiff should have received notice from the EEOC -
instead of the Attorney General - the Tenth Circuit has
granted equitable relief in similar situations where an
agency refused to issue a right-to-sue and placed plaintiff
in a “catch-22 situation.” See Hiller,
327 F.3d at 1251-52 (excusing plaintiff's failure to
obtain notice from proper agency). Here, plaintiff's
actions accomplished the dual purposes of administrative
exhaustion - seeking informal dispute resolution and
providing notice to the respondent. Martinez v.
Potter, 347 F.3d 1208, 1211 (10th Cir. 2003). Thus, the
Court overrules defendant's motion.
IS THEREFORE ORDERED that Defendant University
Of Kansas Hospital Authority's Motion To Dismiss Counts
I, II And III Of Plaintiff's Complaint, Or In The
Alternative, To Stay This Matter Until Plaintiff Has