United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum, United States District Judge
filed this lawsuit alleging that defendants denied her the
opportunity to apply for a position as a patrol officer based
on her race and/or gender in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This
matter is presently before the court on defendants'
motion to dismiss plaintiff's complaint (doc. 13) for
failure to state a claim. Specifically, defendants assert
that plaintiff's Title VII claims are time-barred because
they were not filed within 90 days of plaintiff's receipt
of her notice of right to sue and, at a minimum, that her
claims against the Kansas City, Kansas Police Department must
be dismissed because that defendant is not an independent
legal entity that can be sued.
response, plaintiff concedes that the police department
should be dismissed as a defendant. That aspect of
defendants' motion, then, is granted as unopposed and
that defendant is dismissed from this lawsuit without further
discussion. In response to the timeliness issue, plaintiff
has come forward with evidence demonstrating that her claims
were timely filed. That aspect of the motion, then, is
law requires discrimination complainants to receive
right-to-sue notices before filing private civil actions.
Rodriguez v. Wet Ink, LLC, 603 F.3d 810, 812 (10th
Cir. 2010). Under federal law, the EEOC or the Attorney
General “shall so notify the person aggrieved and
within ninety days after the giving of such notice a civil
action may be brought.” See id. (quoting 42
U.S.C. § 2000e-5(f)(1) and citing Shikles v.
Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.
2005) (“It is well-established that Title VII requires
a plaintiff to exhaust his or her administrative remedies
before filing suit.”)). Plaintiffs must file suit
within 90 days of receiving a right-to-sue notice from the
EEOC. See id. (citing 42 U.S.C. §
attached to her complaint a notice of right to sue that
indicates that the notice was mailed to plaintiff on July 9,
2018. According to defendant, the court should presume that
plaintiff received the notice on July 12, 2018 such that the
complaint, to be timely, must have been filed by October 10,
2018. See Panicker v. Compass Group U.S.A. Inc., 712
Fed.Appx. 784, 786 (10th Cir. 2017) (citing Lozano v.
Ashcroft, 258 F.3d 1160, 1164 (10th Cir. 2001) (federal
courts have presumed various receipt dates ranging from three
to seven days after the letter was mailed)). Plaintiff did
not file her complaint until October 16, 2018, which would be
untimely even under a seven-day presumption of receipt. Based
on the presumption of receipt, defendant moves to dismiss the
complaint as untimely.
issue, then, is whether plaintiff has successfully rebutted
the presumption of receipt. In her response to the motion,
plaintiff avers that she actually received the notice on July
18, 2018. Specifically, plaintiff avers that she contacted
the EEOC on July 16, 2018 and that an intake supervisor
advised plaintiff that her notice of right to sue had been
mailed on July 9, 2018. Plaintiff advised the intake
supervisor that she had not yet received the notice.
Plaintiff further avers that the intake supervisor told her
that another notice would be mailed on that day, July 16,
2018. According to plaintiff, she received that notice on
July 18, 2018 and she emailed her counsel that day,
explaining that she had received her notice
“today.” Plaintiff's counsel has also
submitted an affidavit in which he avers that he did not
receive a copy of the notice from the EEOC until July 23,
2018 and that he calendared the 90-day filing deadline based
on the July 18, 2018 email he received from plaintiff.
Plaintiff's evidence, then, demonstrates personal
knowledge of the receipt date-July 18, 2018. Moreover, this
evidence is not disputed by defendant-in fact, defendant has
not filed a reply to the response. Thus, defendant's
mailing-time presumption has been rebutted by plaintiff's
evidence regarding the actual receipt date. See
Lozano, 258 F.3d at 1166 (in determining the date of
actual receipt, a court may rely upon affidavits stating
personal knowledge of receipt date); Witt v. Roadway
Express, 136 F.3d 1424, 1429-30 (10th Cir. 1998) (where
document mailed on January 28, affidavit by claimant stating
he received it mid-March sufficient to rebut five-day receipt
presumption). Based on that date, the complaint was timely
filed and the motion is denied.
IS THEREFORE ORDERED BY THE COURT THAT
defendants' motion to dismiss (doc. 13) is
granted in part and denied in part.
FURTHER ORDERED BY THE COURT THAT plaintiff's claims
against defendant Kansas City, Kansas Police Department are
dismissed with prejudice.