United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's Motion to
Dismiss and Plaintiff's Motion for Leave to Respond Out
of Time (Docs. 17, 24.) The motions are fully briefed and are
ripe for decision. (Docs. 18, 26, 27, 28, 29.) For the
reasons stated herein, Defendant's motion to dismiss is
TAKEN UNDER ADVISEMENT and Plaintiff's motion to respond
out of time is GRANTED.
proceeding in forma pauperis, filed a pro se complaint on
January 8, 2018, alleging he was wrongfully terminated from
his job with Defendant on account of race, sex, age, and
disability in violation of Title VII, the Americans with
Disabilities Act (ADA), and the Age Discrimination in
Employment Act (ADEA). (Doc. 1.) Defendant moves to dismiss
the complaint, arguing it was not timely filed within 90 days
of Plaintiff's receipt of a right-to-sue letter from the
Equal Employment Opportunity Commission (EEOC). (Doc. 18 at
3-4.) In the alternative, Defendant's motion argues the
complaint fails to state a claim upon which relief can be
granted. (Id. at 6.)
failed to timely respond to the motion to dismiss. On May 17,
2018, Plaintiff filed a Motion to Respond Out of Time (Doc.
24). That motion asserted, among other things, that the
right-to-sue letter from the EEOC “was not properly
delivered” in that it “was laying on my porch
like it fell from my front door on [October] 12, 2017.”
(Doc. 24 at 2.) Plaintiff contends the right-to-sue letter
“was not in my control until [October] 12, 2017 [as] I
hadn't seen it (the letter).” (Id. at
3-4.) A copy of the EEOC letter attached to Defendant's
motion indicated it was mailed October 5, 2017. (Doc. 18-1.)
Plaintiff also asserts he was treated unfairly by having a
co-worker make sexual harassment allegations against him.
text entry order of May 22, 2018, the court stated it would
consider Plaintiff's Motion for Leave to Respond Out of
Time (Doc. 24) as his response to Defendant's Motion to
Dismiss. (Doc. 25.) The court thus effectively granted
Plaintiff's motion to respond out of time.
90-day Filing Period. A claimant has ninety days
from receipt of the EEOC's right to sue letter to file a
lawsuit under Title VII, the ADA, or the ADEA. 42 U.S.C.
§ 2000e-5(f)(1); 42 U.S.C. § 12117(a); 29 U.S.C.
§ 626(e); Guevara v. Best. W. Stevens Inn,
Inc., 78 Fed.Appx. 703, 704, 2003 WL 22407428 (10th Cir.
Oct. 22, 2003) (90-day period applicable to Title VII and
ADEA claims). “The 90-day period commences upon receipt
of the right-to-sue letter, not mailing.” Goldwyn
v. Donahoe, 562 Fed.Appx. 655, 656 (10th Cir. 2014)
(citation omitted.); Million v. Frank, 47
F.3d 385, 388 n. 5 (10th Cir. 1995) (“[T]his court and
others have interpreted the term ‘giving of such
notice' in § 2000e-5(f)(1) to mean that the time
period begins to run upon ‘receipt' of the notice
by the plaintiff.”).
rebuttable presumption of receipt arises on evidence that a
properly addressed piece of mail was placed in the care of
the postal service. Witt v. Roadway Exp., 136 F.3d
1424, 1429-30 (10th Cir. 1998). The Supreme Court has
established a presumption that a claimant receives a
right-to-sue letter three mailing days after the date on the
notice. Barrett v. Rumsfeld, 158 Fed.Appx. 89, 92,
2005 WL 3196750 (10th Cir. 2005) (citing Baldwin Cty.
Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984)).
Defendant invokes this presumption to argue that
Plaintiff's suit is untimely. But because the term
“mailing days” is limited to days where there is
regular mail delivery, Sundays and federal holidays are
excluded, and Plaintiff's suit was in fact filed within
90 days of his presumed receipt of the EEOC notice. If the
notice was mailed on October 5, 2017, it was presumably
received by Plaintiff on October 10, 2017, because October 8
was a Sunday and October 9 was the Columbus Day holiday.
Ninety days from October 10, 2017, was January 8, 2018, the
day Plaintiff filed his complaint. See Barrett, 158
Fed.Appx. at 92 (under three mailing-day rule, “[w]e
… assume that the notice was mailed on Thursday, May
1, 2003, and received on Tuesday, May 6, 2003.”);
Johnson v. Jacksons of Enid, Inc., 2010 WL 1757298,
*3 (W.D. Okla. Apr. 30, 2010) (Sunday not a “mailing
day”). The court therefore rejects Defendant's
argument that the complaint was filed outside the 90-day
Failure to state a claim for relief. To withstand a
motion to dismiss for failure to state a claim, a complaint
must contain enough allegations of fact to state a claim to
relief that is plausible on its face. Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974 (2007)). All well-pleaded facts and the reasonable
inferences derived from those facts are viewed in the light
most favorable to plaintiff. Archuleta v. Wagner,
523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court's consideration.
Shero v. City of Grove, Okla., 510 F.3d 1196, 1200
(10th Cir. 2007). In the end, the issue is not whether
plaintiff will ultimately prevail, but whether he is entitled
to offer evidence to support his claims. Beedle v.
Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
Additionally, when a plaintiff is proceeding pro se, the
court construes his pleadings liberally, although the court
cannot assume the role of advocate for the pro se party.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
complaint contains almost no factual content. It alleges that
Plaintiff was “wrongly terminated for misconduct of
policy, ” alleges “discrimination (race, sex,
age, retaliation, ” lists his birth date, and asserts
that Plaintiff was “fired for false accusations by a
female coworker.” (Doc. 1 at 3.) It elsewhere indicates
that Plaintiff has a learning disability and that “I
complied and my disability got in the way.”
(Id. at 10.)
8(a) of the Federal Rules of Civil Procedure requires a
complaint to contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Plaintiff's complaint contains no such
facts. The 12(b)(6) standard does not require that a
plaintiff establish a prima facie case of discrimination in
his complaint, but examining the elements of each alleged
cause of action helps to show whether a complaint sets forth
a plausible claim. Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012). For example, a plaintiff
alleging discrimination on account of race or sex can prove a
violation of Title VII either through direct or
circumstantial evidence that the termination decision was
based on these impermissible factors. A plaintiff can make a
prima facie case by showing that he is a member of a
protected class, that he suffered an adverse employment
action, that he was qualified for the position, and that he
was treated less favorably than others not in the protect
class. Id. Plaintiff's complaint sets forth his
race, sex, and the fact that he was terminated, but otherwise
fails to allege facts showing that the termination occurred
under circumstances tending to show discrimination. The
complaint is similarly lacking as to Plaintiff's other
claiming that a termination was due to
“discrimination” is the type of conclusory
allegation that is to be disregarded under Iqbal.
“Plaintiff's general assertions of discrimination
and retaliation, without any details whatsoever of events
leading up to [his] termination, are insufficient to survive
a motion to dismiss.” Khalik, 671 F.2d at
1193. The allegations in the complaint do not explain the
circumstances of Plaintiff's termination and they are
insufficient to plausibly show that Plaintiff was terminated
on account of race, sex, age, disability, or in retaliation
for engaging in protected activity.
it is possible that Plaintiff could overcome these
deficiencies by amending his claims, the court will give him
an opportunity to file an amended complaint. See Collier
v. AT&T, Inc., 2017 WL 4284868, *5 (D. Kan. Sept.
27, 2017) (a pro se litigant bringing suit in forma pauperis
is entitled to notice and an opportunity to amend the