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Beecham v. JC Penney Distribution Center

United States District Court, D. Kansas

July 8, 2019

TAWANA MARSHAWN BEECHAM, Plaintiff,
v.
JC PENNEY DISTRIBUTION CENTER; and MANPOWER GROUP, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         Defendants J.C. Penney Corporation, Inc. (“J. C. Penney”) and Manpower U.S. Inc. (“Manpower”) each move to dismiss pro se plaintiff Tawana Marshawn Beecham's complaint.[1](Docs. 10, 13.) Defendant J.C. Penney moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to exhaust administrative remedies or to show that defendant was plaintiff's employer under Title VII and the ADEA. (Doc. 10.) Defendant Manpower moves first for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1), for failure to exhaust administrative remedies under Title VII and the ADEA, and second for dismissal or in the alternative to quash insufficient service pursuant to Federal Rule of Civil Procedure 12(b)(5). (Doc. 13.)

         I. FACTUAL BACKGROUND

         Plaintiff is an African-American female and former employee of Manpower. Defendants are J.C. Penney Corporation, Inc. and temporary staffing agency Manpower. Defendant Manpower assigned plaintiff to work at J.C. Penney's Logistics Center in Lenexa, Kansas, in September 2017. Plaintiff worked at the Lenexa facility through December 2017. Plaintiff alleges she was discriminated against on the basis of race, gender, and age. Plaintiff further alleges that she was terminated in retaliation for reporting a hostile work environment.

         For her Title VII claims, plaintiff alleges she filed a charge of discrimination against defendants and received a right-to-sue letter. Plaintiff has not alleged that either (1) 60 or more days have passed, or (2) fewer than 60 days have passed since filing a charge of age discrimination with the EEOC. Plaintiff has not provided the dates corresponding to either the filing of her ADEA charge or the receipt of her Title VII right-to-sue letter.

         Plaintiff commenced this suit by filing a form employment discrimination claim with the court and attempted service on defendant Manpower by certified letter to “MANPOWER GROUP, 10500 LACKMAN RD, LENEXA, KS 66219, ” the address for the J.C. Penney Logistics Center where plaintiff worked.

         II. LEGAL STANDARDS

         The court liberally construes pro se pleadings, but pro se plaintiffs must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         A. 12(b)(1) and the Effect of Lincoln

         Until recently in the Tenth Circuit, motions to dismiss under Title VII based on a plaintiff's failure to exhaust administrative remedies were treated as jurisdictional and considered under Rule 12(b)(1). Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1182-85 (10th Cir. 2018) (concluding administrative exhaustion no longer jurisdictional requirement and overruling prior law by vote of all active judges). After Lincoln, the failure to exhaust administrative remedies is a non-jurisdictional condition precedent to suit, and an affirmative defense to be raised by a defendant pursuant to Rule 12(b)(6). See id.

         B. 12(b)(5)

         A motion made under Rule 12(b)(5) “challenges the mode or lack of delivery of a summons and complaint.” Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994) (citations omitted). A plaintiff must validly serve the defendant with process before the court can exercise personal jurisdiction over that defendant. See Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition to suit . . . .”). When a defendant challenges service of process, the plaintiff has the burden of proving the sufficiency of service. Ammon v. Kaplow, 468 F.Supp. 1304, 1309 (D. Kan. 1979). The court may consider documentary evidence and weigh affidavits when evaluating the sufficiency of the plaintiff's service on a defendant. Id. “Generally, when the Court finds that service is insufficient but curable, it should quash service and give plaintiff an opportunity to re-serve defendant.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1269 (D. Kan. 2008); see Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983).

         Under Federal Rule of Civil Procedure 4(h)(1), a domestic or foreign corporation must be served “in a judicial district of the United States” either (1) pursuant to state law in the jurisdiction where the action is brought or service is made; or (2) by delivering a copy of the summons and complaint to an agent authorized to accept service of process. Fed.R.Civ.P. 4. Kansas allows service by return receipt delivery through certified mail. Kan. Stat. Ann. § 60-303.

         C. 12(b)(6), Exhaustion of Administrative ...


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