United States District Court, D. Kansas
SARA N. AYESH, Plaintiff,
BUTLER COUNTY SHERIFF'S OFFICE, et al., Defendants.
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE.
Sara N. Ayesh brings suit against Defendants Butler County
Sheriff's Office and Butler County Jail. She asserts
claims of sexual harassment and retaliation. Defendants filed
a Motion to Dismiss contending that neither Butler County
Sheriff's Office nor Butler County Jail are entities that
can be sued and thus the case should be dismissed (Doc. 8).
In response, Plaintiff has filed two Motions to Amend the
Complaint, requesting leave to substitute the proper party
(Docs. 10, 13). Plaintiff's second motion renders her
first motion moot. Therefore, the Court will only consider
the second motion in this Order.
motion, Plaintiff seeks to amend her Complaint to add the
proper party, the Board of County Commissioners of Butler
County, Kansas (“the Board”). Defendants argue
that Plaintiff cannot do so because the Board was not named
in her Equal Employment Opportunity Commission
(“EEOC”) charge and thus the Court lacks
jurisdiction. In addition, Defendants assert that the statute
of limitations has run because the amendment cannot relate
back to her original Complaint. For the reasons stated in
detail below, the Court denies Defendants' Motion to
Dismiss as moot, and grants Plaintiff's second Motion to
Amend her Complaint. Thus, the case continues with the
properly named party.
Factual and Procedural Background
was hired in September 2016 as a part-time detention deputy
with the Butler County Sheriff's Office. Her job duties
included processing inmates, maintaining jail security,
serving meals, transporting inmates, receiving and processing
inmates into and out of custody, searching inmates,
maintaining records, and other clerical duties. One of
Plaintiff's supervisors was Captain Erik Ramsey.
about July 14, 2017, Plaintiff started receiving text
messages from Ramsey. These messages were regular,
continuous, and became sexually inappropriate. Plaintiff felt
compelled to respond to the text messages because Ramsey was
her supervisor. The texting continued from August 2017
through March 2018, and many text messages were sexually
work, Ramsey's office was near the restroom. When
Plaintiff went to the restroom, she walked by his office.
When she walked by, Ramsey made comments about her appearance
an internal investigation, Plaintiff advised the Human
Resources Department about Ramsey's conduct. She showed
them screen shots of the messages. Instead of investigating,
Plaintiff was summoned to the office on May 15, 2018, and
told that she would need to take a polygraph test. Plaintiff
refused and left her employment.
13, 2018, Plaintiff filed a Charge of Discrimination with the
EEOC. She named the Butler County Sheriff's Office and
Butler County Jail as the employer who discriminated against
her. On April 19, 2019, she received a right-to-sue letter.
She filed suit in this Court on July 16, 2019. Plaintiff
contends that she was constructively discharged and
retaliated against for making a complaint about Ramsey's
conduct of sexual harassment. She brings claims for quid quo
pro sexual harassment and retaliation.
have now filed a Motion to Dismiss. They contend that
Plaintiff fails to state claim because Butler County
Sheriff's Office and Butler County Jail are entities that
cannot be sued. Plaintiff seeks leave to amend her Complaint
to name the Board as Defendant.
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6), a defendant may
move for dismissal of any claim for which the plaintiff has
failed to state a claim upon which relief can be
granted.Upon such motion, the Court must decide
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.'
” A claim is facially plausible if the
plaintiff pleads facts sufficient for the Court to reasonably
infer that the defendant is liable for the alleged
misconduct. The plausibility standard reflects the
requirement in Rule 8 that pleadings provide defendants with
fair notice of the nature of claims as well the grounds on
which each claim rests.Under Rule 12(b)(6), the Court must
accept as true all factual allegations in the complaint, but
need not afford such a presumption to legal
conclusions. Viewing the complaint in this manner, the
Court must decide whether the plaintiff's allegations
give rise to more than speculative
possibilities. If the allegations in the complaint are
“so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
initial matter, Defendants contend that they bring their
Motion to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Defendants state that the
exhaustion of administrative remedies is a jurisdictional
prerequisite to filing a Title VII action in federal court.
Although this was previously the law in this circuit, the
Tenth Circuit Court of Appeals held in 2018 that the failure
to exhaust administrative remedies is not a jurisdictional
bar to a plaintiff's lawsuit. Instead, the failure to
exhaust is an affirmative defense that a defendant may raise
in a motion to dismiss. Thus, the Court will only consider
Defendants' arguments under Rule 12(b)(6) standards.
sheriff's department is an agency of the
county. “Kansas courts have consistently
held that subordinate government agencies do not have the
capacity to sue or be sued in the absence of statutory
authorization.” There is no statute permitting suit
against the sheriff's office.Thus, the Butler County
Sheriff's Office is not amenable to suit and must be
dismissed. In addition, the Butler County Jail is a
subordinate government agency, and there is no statute giving
it the capacity to sue or to be sued. Thus, these
two Defendants are improper parties and must be dismissed.
This finding, however, does not end the matter because
Plaintiff filed a Motion to Amend Complaint to name the Board
Motion to Amend Complaint
Federal Rule of Civil Procedure 15(a)(2), once a responsive
pleading has been filed, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Rule 15(a)(2) provides
that courts should “freely give leave when justice so
requires.”A court, however, may refuse to grant
leave to amend based upon “a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.” The party
that asserts futility has the burden in establishing the
amendment's futility. With regard to futility, the
court must analyze the proposed amendment as though it was
before the court on a motion to dismiss under Fed.R.Civ.P.