United States District Court, D. Kansas
ELSA T. ABRAHAM, also known as ELSA ABRAHA, Plaintiff,
GOLD CROWN MANAGEMENT LLC, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
August 13, 2018, plaintiff Elsa Abraham filed this employment
discrimination lawsuit against defendant Gold Crown
Management. Defendant has filed a Motion to Dismiss. Doc. 10.
Defendant asks the court to dismiss plaintiff's lawsuit
for two reasons. First, defendant argues, the court should
dismiss the Complaint because plaintiff did not file it
within 90 days of plaintiff receiving her right to sue
letter. Thus, defendant contends, plaintiff's claims are
time-barred. Second, defendant argues, the Complaint fails to
state a plausible claim for relief as required by Federal
Rule of Civil Procedure 8. As explained below, the court
agrees that the Complaint fails to state a plausible claim
for relief. But the court grants plaintiff leave to file an
amended complaint curing the various deficiencies identified
in this Order. Thus, the court denies defendant's Motion
to Dismiss but without prejudice to refiling a motion on an
amended complaint, if plaintiff files one.
plaintiff Elsa Abraham filed her Complaint with our
court on August 13, 2018, using the court's form for a
pro se Employment Discrimination Complaint. Doc. 1. The
Complaint is difficult to understand. But, as best the court
can discern, plaintiff alleges that defendant used to employ
her. She asserts claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et seq.;
the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. §§ 621, et seq.; and the
Americans with Disabilities Act of 1990, as amended, 42
U.S.C. §§ 12101, et seq. Id. at
1. Under the section in the Complaint called “Nature of
the Case, ” plaintiff identifies the conduct she
complains of in this lawsuit by checking the boxes for
“termination of [her] employment, ”
“failure to promote [her], ” “failure to
accommodate [her] disability, ” “terms and
conditions of [her] employment differ from those of similar
employees, ” “retaliation, ”
“harassment, ” “reduction in wages, ”
and “other conduct” handwritten as “Title
VII American w/ Disabilities.” Id. at 3.
Plaintiff asserts defendant discriminated against her because
of her race, religion, national origin, gender, disability or
perceived disability, and age. Id. She identifies
herself as black, Christian, Eritrean,  female, with
PTSD/depression as a disability, and born in 1959.
part of the form B Complaint asking plaintiff to state
“briefly and clearly as possible, the essential facts
of [her] claim, ” plaintiff provides the following
During my employment, I was harassed by the management.
Including insults, because of my race, religion and my
national origin. Similarly harassed with others [based on] my
sex as a female, age as well. Under pay and garnished my pay
check. Rental agreement was revoked for no reason. All in all
at work and my residence which is owned by them.
Id. at 3-4.
Complaint states that plaintiff no longer works for
defendant. Id. at 4. But, at the same time, she
alleges that defendant still is committing the alleged
unlawful acts. Id. Plaintiff asserts that defendant
denied her request for a reasonable accommodation for her
disability. Id. In the space provided to explain,
she alleges: “Did not allow me to work regular work
schedule, and retaliated against me daily.”
Id. Plaintiff seeks money damages for
“deterioration of mental health, ” all lost
wages, relocation fees, and all costs for the case.
Id. at 5.
alleges that she filed a Charge of Discrimination with the
Equal Employment Opportunity Commission on April 26, 2018.
Id. at 2. But she has attached to her Complaint a
different charge of discrimination-one she filed with the
EEOC four years earlier in 2014. Doc. 1-1 at 2. It lists the
Charge Number as 563-2014-01521 (“the 2014
also attached a right to sue letter. Doc. 1-1 at 1. It
addresses a different charge of discrimination than the EEOC
charge attached to the Complaint as Doc.1-1 at 2,
i.e. Charge Number 563-2018-01555 (“the 2018
Charge”). Id. at 1. This right to sue letter
is dated May 15, 2018. Id.
Civ. P. 8(a)(2) provides that a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Although this Rule
“does not require ‘detailed factual allegations,
'” it demands more than “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court explained,
“will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must assume that the factual allegations in the
complaint are true. Id. (citing Twombly,
550 U.S. at 555). But the court is “‘not bound to
accept as true a legal conclusion couched as a factual
allegation.'” Id. (quoting
Twombly, 550 U.S. at 555). “‘Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice'” to
state a claim for relief. Bixler v. Foster, 596 F.3d
751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S.
at 678). Also, the complaint's “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citations omitted).
complaint to survive a motion to dismiss under Rule 12(b)(6),
the pleading “must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 679 (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). “The plausibility standard is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556); see also Christy Sports, LLC v. Deer
Valley Resort Co., 555 F.3d 1188, ...