Otte v. Schuele et al

Filing 16

MEMORANDUM AND ORDER denying 7 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Richard D. Rogers on 6/19/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
COHEN OTTE,

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Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF ATCHISON,
KANSAS,
Defendant.

Case No. 13-2159-RDR

MEMORANDUM AND ORDER
This matter is presently before the court upon defendant=s motion
to dismiss.

Having carefully reviewed the arguments of the parties,

the court is now prepared to rule.
I.
Plaintiff asserts claims of disability discrimination under the
Americans with Disabilities Act (ADA), 42 U.S.C. ' 12101 et seq.,
against his former employer, the Board of County Commissioners of
Atchison

County,

Kansas.

Plaintiff,

who

was

employed

as

a

maintenance man with the defendant, contends that the defendant (1)
discriminated against him because of his disability, arthritis; (2)
failed to reasonably accommodate his disability; and (3) retaliated
against him for requesting a reasonable accommodation.
In this motion, the defendant contends that plaintiff has failed
to exhaust his administrative remedies on his claim for failure to
provide a reasonable accommodation.

The defendant argues that

plaintiff=s administrative charge of discrimination filed with the
Equal Employment Opportunity Commission (EEOC) Adid not clearly set
forth a basis for [failure to provide a reasonable accommodation],
did not allege any failure to provide reasonable accommodation, and
did not allege any failure to provide reasonable accommodation.@

The

defendant asserts that plaintiff=s claim of failure to provide a
reasonable accommodation must be dismissed pursuant to Fed.R.Civ.P.
12(b)(6).

Plaintiff has responded that, under the liberal rules of

Fed.R.Civ.P. 8(a), he has provided fair notice of a claim of failure
to provide a reasonable accommodation under the ADA.

He suggests

that his charge filed with the EEOC was sufficient to allow such a
claim in this case.
The parties= reliance upon Rules 12(b)(6) and 8(a) are misplaced.
The defendant does not contend that plaintiff has failed to state
a claim for failure to provide a reasonable accommodation under the
ADA in his complaint.

Rather, the defendant argues that plaintiff

has failed to exhaust his administrative remedies on this claim.
Such an argument goes to the court=s subject matter jurisdiction.
Filing a charge of discrimination with the EEOC is a jurisdictional
prerequisite to the institution of a lawsuit based on a claim of
employment discrimination under the ADA.
502 F.3d 1176, 1183 (10th Cir. 2007).

See Jones v. UPS, Inc.,

As a result, the court must

consider the defendant=s motion under Fed.R.Civ.P. 12(b)(1).
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When

a defendant brings a motion to dismiss for lack of subject matter
jurisdiction, the plaintiff must carry the burden of proving
jurisdiction.

Mounkes v. Conklin, 922 F.Supp. 1501, 1505 (D.Kan.

1996).
Rule 12(b)(1) attacks on subject matter jurisdiction are
typically either facial attacks on the sufficiency of jurisdictional
allegations or factual attacks on the accuracy of those allegations.
Holt v. United States, 46 F.3d 1000, 1002B03 (10th Cir. 1995).

The

defendant in this case lodges a factual attackC-one which questions
the accuracy of the allegations in the complaint as they relate to
subject matter jurisdiction.

See Holt, 46 F.3d at 1002. In reviewing

a factual attack on the complaint, the court has wide discretion to
allow affidavits, other documents, and a limited evidentiary hearing
to resolve disputed jurisdictional facts.

See Davis ex rel. Davis

v. United States, 343 F.3d 1282, 1294 (10th Cir. 2003), cert. denied,
542 U.S. 937 (2004).

In such instances, a court=s reference to

evidence outside the pleadings does not convert the motion to dismiss
to a motion for summary judgment under Fed.R.Civ.P. 56.

Id.

II.
On or about July 19, 2012, plaintiff filed a charge of
discrimination alleging Adisability discrimination and retaliation@
with the EEOC.

The charge described the discrimination as follows:

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I have a disability in my lower back requiring
occasional modification of the schedule for which I
perform duties. Atchison County was aware of this
disability upon my hiring. Atchison County, specifically
Peggy House (director of Atchison County Senior Village,
the Atchison County run nursing home), discriminated by:






Giving lower raise than other county employees
Inaccurately recording my sick and vacation time
Writing me up when I needed schedule altered
Writing me up for activities, but not writing
non-disabled
employees
up
for
the
same
activities
Going through my personal belongings to see my
Rx (prescriptions)

On February 7, 2012 I was instructed to clock out and leave
work by Peggy House for requesting to leave for an
emergency doctor appointment, despite my offer to make up
lost time that night. I asked Peggy why she was treating
me differently, Peggy House directed me to clock out and
leave work and to call the next morning at 8:00 a.m. before
returning to work. When I called on February 8, 2012, I
was instructed not to return to work and to call again the
next day (February 9, 2012) at 8:00 to see if I could
return. When I called on February 10, 2012 to see if I could
return to work, Peggy House would not answer my call but
instead had another staff member tell me that she could
not be disturbed.
I reported this discrimination to the Sheriff, John
Calhoun (whom is on the discrimination board for Atchison
County) on February 8, 2012. On February 8, 2012 I was
terminated. Atchison County denied my unemployment
despite emails from an Atchison County Commissioner
verifying that I would not be denied. I seek lost pay and
benefits, pain and suffering, emotional distress,
reinstatement, a clean record, attorney=s fees and any
other relief deemed appropriate.

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III.
AA plaintiff's claim in federal court is generally limited by
the scope of the administrative investigation that can reasonably
be expected to follow the charge of discrimination submitted to the
EEOC.@

MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th

Cir. 2005).

The inquiry is generally Alimited to the scope of the

administrative investigation that can reasonably be expected to
follow from the discriminatory acts alleged in the administrative
charge.@

Jones, 502 F.3d at 1186 (emphasis in original).

The court

must liberally construe charges filed with the EEOC in determining
whether

administrative

particular claim.

remedies

have

been

exhausted

as

to

a

Id.

The court notes in his charge that plaintiff alleged, inter
alia, that he had a disability arising from problems with his lower
back.

He further alleged that this condition required Aoccasional

modification of [his] schedule.@

Finally, he asserted that his

supervisor was aware of his disability and cited him when he needed
an altered schedule.
The court is persuaded that the plaintiff=s claim of failure to
provide a reasonable accommodation here could reasonably be expected
to follow the allegations that were made in plaintiff=s EEOC charge.
In order to state a claim of failure to provide a reasonable
accommodation under the ADA, a plaintiff must show that: (1) he has
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a disability within the meaning of the ADA; (2) the employer had
notice of his disability; (3) he could perform the essential
functions of the job with reasonable accommodation; and (4) the
employer refused to provide such accommodation.

Bones v. Honeywell

Int=l, Inc., 223 F.Supp.2d 1203, 1218 (D.Kan. 2002), aff=d, 366 F.3d
869 (10th Cir. 2004)(citation omitted).

Although in his EEOC charge

plaintiff failed to specifically mention a failure to accommodate
claim, he did allege facts that adequately put the defendant on notice
of such a claim.

He noted the existence of a disability, knowledge

of the disability by the defendant, the ability to perform the job
with a reasonable accommodation and the defendant=s failure to provide
such accommodation.

Accordingly, the court shall deny defendant=s

motion to dismiss.
IT IS THEREFORE ORDERED that defendant=s motion to dismiss (Doc.
# 7) be hereby denied.
IT IS SO ORDERED.
Dated this 19th day of June, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

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