Bailey v. Cartwright School District No. 83

Filing 5

ORDER GRANTING defendant's motion to dismiss (doc. 4 ). The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 1/17/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thelma Bailey,
Plaintiff,

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vs.

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Cartwright School District No. 83,
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Defendant.
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No. CV-11-1432-PHX-FJM
ORDER

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The court has before it defendant Cartwright School District No. 83's motion to

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dismiss (doc. 4). Plaintiff has not responded to the motion and the time for doing so has

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expired. See LRCiv 7.2(c). Plaintiff’s failure to respond to the motion may be deemed a

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consent to the granting of the motion and we may dispose of the motion summarily. LRCiv

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7.2(i).

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Defendant employed plaintiff has a family and consumer science teacher. During the

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2008-2009 school year, defendant’s governing board voted to eliminate the family and

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consumer science elective, at which time plaintiff was notified that she had been selected for

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a reduction in force for the next school year. Plaintiff filed this action asserting claims under

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Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with

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Disabilities Act (ADA). Defendant moves to dismiss the complaint contending that the

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action is barred for plaintiff’s failure to file a timely charge of discrimination with the Equal

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Employment Opportunity Commission (EEOC).

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Before asserting a civil action under Title Vii, the ADEA, or the ADA, a plaintiff must

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first file a charge of discrimination with the EEOC within 300 days after the alleged unlawful

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employment practice took place. See 42 U.S.C. § 2000e-5(e)(1) (Title VII), 29 U.S.C. §

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626(d)(1) (ADEA); 42 U.S.C. § 12117(a) (ADA). A discriminatory act is not actionable

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unless a timely charge is filed. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113,

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122 S. Ct. 2061, 2072 (2002).

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Plaintiff alleges in her complaint that she filed a charge of discrimination with the

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EEOC before filing this action. Compl. ¶ 16. She filed an unperfected charge on March 30,

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2010, which was later perfected on August 31, 2010. Motion, ex. A. Therefore, assuming

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the August charge relates back to the March charge, to be timely, any discriminatory conduct

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must have occurred on or after June 3, 2009, which was 300 days before the unperfected

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EEOC claim was filed. The EEOC charge itself states that the latest date that any

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discrimination occurred was June 1, 2009. Because plaintiff failed to file the charge within

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300 days after the alleged discriminatory acts occurred, her complaint is time-barred and the

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action must be dismissed.

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IT IS ORDERED GRANTING defendant’s motion to dismiss (doc. 4). The clerk
shall enter final judgment.
DATED this 17th day of January, 2012.

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