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Kiley v. Jefferson County School District

United States District Court, D. Colorado

February 12, 2018

MICHAEL KILEY, Plaintiff,
v.
JEFFERSON COUNTY SCHOOL DISTRICT, JOSEPHINE GALLAGHER, in her official capacity, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 33.) For the reasons discussed herein, the Court grants in part and denies in part Defendants' Motion to Dismiss.

         I. BACKGROUND

         Plaintiff, a former employee of the Jefferson County School District, alleges he was discriminated against by Defendants in violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §12181. (Doc. # 32.) Plaintiff timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) in Denver, Colorado, on January 24, 2017. (Doc. # 33 at 2.) The EEOC issued its Dismissal and Notice of Right-to-Sue letter (“Notice”) on April 19, 2017, in which it notified Plaintiff that the EEOC was closing its file on the charge and gave Plaintiff the requisite permission to file a lawsuit in federal or state court. (Doc. # 33-3.) The Notice additionally informed Plaintiff that, in order to pursue the matter further, a lawsuit had to be filed “within 90-days of the date you receive this Notice.” (Id. at 2) (emphasis in original).

         Defendants filed the instant Motion to Dismiss Plaintiff's Second Amended Complaint on November 15, 2017, asserting first that Plaintiff's claim is time-barred. (Doc. # 33 at 3.) Defendants allege Plaintiff was notified of his right-to-sue, whether by written notice or a telephone conversation with an EEOC representative, on or before April 22, 2017. (Id. at 5.) Defendants claim that initiation of Plaintiff's suit on July 22, 2017, is therefore untimely because it is ninety-one days from the time he received the notification. (Id. at 5.) Defendants raise a second, alternative ground for dismissal, asserting that Defendant Gallagher should be dismissed from the case because the ADA does not permit claims against individual defendants. (Id. at 6.)

         In response, Plaintiff alleges he received his Notice on April 24, 2017, and that he filed his claim with the Court on July 22, 2017, eighty-nine days after he received the Notice.[1] (Doc. # 34-1 at 4.) Plaintiff denies knowledge of the issuance or receipt of the Notice of his right-to-sue prior to April 24, 2017. (Id.) With respect to dismissal of Defendant Gallagher, Plaintiff asserts that there is no prohibition in the ADA against naming an individual in his or her official capacity. (Doc. # 34 at 2.)

         On December 20, 2017, Defendants filed their reply brief, asserting that Plaintiff had actual notice that the EEOC charge had been dismissed prior to April 24, 2017, and that naming both an employer and its employee in her official capacity is duplicative. (Doc. # 37 at 4-5.)

         II. LEGAL STANDARD

         A challenge to the timeliness of a suit following an EEOC notice is considered under Rule 12(b)(6). Barrett v. Rumsfeld, 158 Fed.Appx. 89, at 91 n.1 (10th Cir. 2005) (unpublished). In reviewing a 12(b)(6) motion to dismiss, “a district court may review indisputably authentic copies of documents without converting the motion into one for summary judgment, including documents that are central to the timeliness of the filing.” Id.

         Under Rule 12(b)(6), the Court may dismiss a complaint for failure to state a claim if it appears beyond a doubt that the plaintiff can plead no set of facts in support of his claim that would entitle him to relief. Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004). Therefore, a complaint will only survive such a motion if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009).

         “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). In reviewing a motion to dismiss, courts take all well-pleaded allegations in the plaintiff's complaint as true and construe the allegations in the light most favorable to plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).

         III. ANALYSIS

         A. WHETHER CLAIM WAS TIMELY FILED PURSUANT TO EEOC NOTICE

         Pursuant to 42 U.S.C. § 2000e-5, the EEOC shall “notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought . . . by the person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(1). The EEOC requires notice to include: “(1) [a]uthorization to the aggrieved person to bring a civil action . . . within 90 days from receipt of such authorization; (2) [a]dvice concerning the institution of such civil action by the person claiming to be aggrieved, where ...


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