United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
Gary Seeley filed two form complaints in forma pauperis,
checking boxes alleging violations of the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§§ 621, et seq., and American with
Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§§ 12101, et seq. Doc. 1-1. He also
challenges the denial of state unemployment benefits. Doc. 1.
Defendants Trand Inc. and the Kansas Employment Review Board
move to dismiss for lack of subject matter jurisdiction and
failure to state a claim. Docs 7, 11. Although the Court finds
subject matter jurisdiction over Plaintiff's ADEA and ADA
claims, it agrees that dismissal of these claims is warranted
because of Plaintiff's failure to exhaust his
administrative remedies. And based on this dismissal, the
Court declines to exercise supplemental jurisdiction over
Plaintiff's remaining state-law claim and accordingly
dismisses this case.
Inc., a Kansas corporation, terminated Plaintiff. Doc. 1-2 at
1. He filed for and was initially granted unemployment
benefits. Trand appealed, and Plaintiff failed to appear at
an evidentiary hearing before a Kansas unemployment benefits
appeals referee. Doc. 1 at 4. At the hearing, the referee
reversed the original determination and found that Plaintiff
had been discharged for safety violations. Plaintiff claims
that he had changed his mailing address to one in Spokane,
Washington, and never received the hearing notice.
Id. at 3. He alleges he tried to call and write to
establish “good cause” for not appearing but
received no response. Id. at 4. He also appealed to
the Kansas Employment Security Board of Review (“the
Board”), which affirmed the referee. Doc. 1-2 at 1. The
Board decision included a notice that an appeal must be filed
in state district court.
January 24, 2019, Plaintiff filed this action against
Defendants and challenges the denial of benefits. Doc. 1.
Plaintiff also asserts claims under the ADEA and the ADA and
for the denial of unemployment benefits. Doc. 1-1. On the
form complaint, Plaintiff checked boxes stating he had not
filed a charge of discrimination with the EEOC or received a
right-to-sue letter. Doc. 1-1 at 2.
seek to dismiss the complaints in their entirety, arguing
that the Court lacks jurisdiction and that Plaintiff failed
to exhaust his administrative remedies before filing suit.
Although the Court has subject matter jurisdiction over
Plaintiff's ADEA and ADA claims, the Court dismisses them
because Plaintiff failed to exhaust his administrative
remedies. Based on its dismissal of the claims over which it
had subject matter jurisdiction, the Court declines to
exercise supplemental jurisdiction over Plaintiff's
The Court has federal-question jurisdiction, but Plaintiff
has not alleged facts to establish diversity
as the party seeking to invoke subject matter jurisdiction,
bears the burden of establishing it. Full Life Hospice,
LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013).
There are two primary avenues for subject matter
jurisdiction: diversity and a federal-question. See
28 U.S.C. §§ 1331, 1332(a). Plaintiff's form
complaint claims diversity as a basis for jurisdiction. But
diversity jurisdiction requires diversity of citizenship
among the parties and an amount in controversy over $75, 000.
See § 1332(a). Here, Plaintiff asserts a
“claim balance” of only $5, 688- far short of the
$75, 000 minimum. Doc. 1 at 4. Although he checks the box for
punitive damages, Plaintiff provides no factual basis for
them. And attorney's fees are not an issue because
Plaintiff is pro se. Thus, Plaintiff has not established
jurisdiction arises if a federal law is at issue. §
1331. Federal-question jurisdiction exists because Plaintiff
asserts violations of the ADEA and ADA-both federal
statutes. And because the Court has original
jurisdiction over these claims, it can exercise supplemental
jurisdiction over his remaining state law claim. See City
of Chi. v. Int'l Coll. of Surgeons, 522 U.S. 156,
164-65 (1997); see also 28 U.S.C. § 1367(a)
(“[I]n any civil action of which the district courts
have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy . . . .”).
Plaintiff fails to state valid claims under the ADEA and ADA
because he has not exhausted administrative
the Court has federal-question jurisdiction, the Court next
addresses Defendants' failure-to-exhaust argument. Both
the ADEA and ADA require a plaintiff to exhaust
administrative remedies before filing suit. Jones v.
U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007);
Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304,
1308 (10th Cir. 2005). The failure to exhaust administrative
remedies before filing suit is no longer a jurisdictional bar
under Rule 12(b)(1). Lincoln v. BNSF Railway Co.,
900 F.3d 1166, 1185 n.10 (10th Cir. 2018) (“[A]
plaintiff's failure to exhaust administrative remedies
before bringing a Title VII, ADA, or Age Discrimination in
Employment Act claim does not deprive a federal court of
jurisdiction over the claim.”). Instead, failure to
exhaust may be raised as an affirmative defense. Id.
at 1185. The defense “may be raised in a [Rule
12(b)(6)] motion to dismiss when the grounds for the defense
appear on the face of the complaint.” Cirocco v.
McMahon, 2019 WL 1594778, at *3 (10th Cir. 2019);
see also Bryant v. United States Postal Serv., 2019
WL 2473787, at *3 (D. Kan. 2019) (dismissing a complaint
under Rule 12(b)(6) because the plaintiff did not receive a
right-to-sue letter from the EEOC for her Title VII claim).
Plaintiff concedes he neither filed a claim with the EEOC nor
obtained a right-to-sue letter. Doc. 1-1 at 2. Because
Plaintiff affirmatively concedes failure to exhaust and did
not challenge this issue in response to Defendant's
motions to dismiss, the Court finds amendment would be
futile. For this reason, the Court dismisses Plaintiff's
ADEA and ADA claims without prejudice.
The Court declines to exercise supplemental jurisdiction over