Below v. United Parcel Service

Filing 10

MEMORANDUM AND ORDER granting Defendant's 7 Motion to Dismiss. This case is hereby dismissed without prejudice. Signed by District Judge Julie A. Robinson on 03/23/2015. Mailed to pro se plaintiff Matthew J. Below by regular mail. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MATTHEW J. BELOW,
Plaintiff,
v.
UNITED PARCEL SERVICE,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 15-2241-JAR-GLR

MEMORANDUM AND ORDER
Plaintiff Matthew J. Below, proceeding pro se and in forma pauperis, brings this action
against his employer, Defendant United Parcel Service (“UPS”), alleging claims of
discrimination under Title VII of the Civil Rights Act, and the Kansas Act Against
Discrimination (“KAAD”). This matter is before the Court on Defendant’s Motion to Dismiss
(Doc. 7). For the reasons explained in detail below, Defendant’s motion is granted.
I.

Failure to Respond
Plaintiff failed to file a response to the motion to dismiss and the time to do so has

expired.1 Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney who
fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.

1

See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within twenty-one days).

A pro se litigant is not excused from complying with the rules of the court, and is subject to the
consequences of noncompliance.2 As a result of Plaintiff’s failure to respond, the Court may
grant Defendant’s motion to dismiss as uncontested.
II.

Motion to Dismiss
The Court also finds that the Complaint must be dismissed on the merits for the reasons

identified in Defendant’s motion to dismiss. As an initial matter, Plaintiff’s Title VII claims
must be dismissed for lack of subject matter jurisdiction because he failed to exhaust his
administrative remedies. Title VII requires a plaintiff to first exhaust his administrative
remedies.3 In the Tenth Circuit, failure to exhaust administrative remedies is a jurisdictional bar
to filing suit in federal court.4 Because exhaustion of administrative remedies is a jurisdictional
requirement, the plaintiff bears the burden of showing exhaustion.5 To exhaust administrative
remedies, a plaintiff must file a charge of discrimination with either the EEOC or an authorized
local agency and receive a right-to-sue letter based on that charge.6 Federal courts are courts of
limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise
jurisdiction.7 A court lacking jurisdiction must dismiss the case, regardless of the stage of the

2

Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).
3

Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005).

4

Id.; Mackley v. TW Telecom Holdings, Inc., 296 F.R.D. 655, 665 (D. Kan. 2014).

5

McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).

6

Mackley, 296 F.R.D. at 665.

7

Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see United States v. Hardage, 58 F.3d 569, 574
(10th Cir. 1995) (“Federal courts have limited jurisdiction, and they are not omnipotent. They draw their jurisdiction
from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1.”) (internal
citations omitted).

2

proceeding, when it becomes apparent that jurisdiction is lacking.8 The party who seeks to
invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper.9
“Thus, plaintiff bears the burden of showing why the case should not be dismissed.”10 Mere
conclusory allegations of jurisdiction are not enough.11
In considering Defendant’s facial attack on the sufficiency of the Complaint, the Court
assumes as true the allegations therein.12 Plaintiff attached his administrative complaint to his
Complaint in this case, which only alleges claims of age discrimination.13 There is no record of
an administrative claim as to Title VII violations that was presented to the Kansas Human Rights
Commission or the EEOC. The Court therefore dismisses the Title VII claims for lack of subject
matter jurisdiction.
Next, the Court finds that Plaintiff’s claims should be dismissed for failure to state a
claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). To state a claim upon
which relief can be granted the complaint must contain “a short plain statement of the claim
showing that the pleader is entitled to relief.”14 Under the “plausibility” standard that guides this
court, a complaint must contain sufficient factual allegations to give fair notice to Defendant of

8

Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).

9

Montoya, 296 F.3d at 955.

10

Harms v. IRS, 146 F. Supp. 2d 1128, 1130 (D. Kan. 2001).

11

United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.

1999).
12

See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citing Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990))
13

Doc. 1 at 8–9.

14

Fed. R. Civ. P. 8(a)(2).

3

the grounds of the claim against them.15 “Without some factual allegation in the complaint, it is
hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the
nature of the claim, but also ‘grounds’ on which the claim rests.”16 Assuming, arguendo, that
Plaintiff’s administrative grievance included his claims under Title VII, those claims are timebarred because the Complaint was filed more than 90 days after he received his right to sue
letter.17 Moreover, those claims must be dismissed for failure to allege that he is a member of a
protected class.18
Finally, this Court lacks jurisdiction to decide Plaintiff’s claims regarding his collective
bargaining agreement. The National Labor Relations Board has exclusive jurisdiction to decide
unfair labor practices.19 And to the extent Plaintiff alleges a claim under the Labor Management
Relations Act that is not preempted, he must allege exhaustion of remedies under the collective
bargaining agreement; he has not done so.20
“[A] pro se litigant bringing suit in forma pauperis is entitled to notice and an
opportunity to amend the complaint to overcome any deficiency unless it is clear that no

15

Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).

16

Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)).

17

See 42 U.S.C. § 2000e-5(f)(1); Witt v. Roadway Express, 136 F.3d 1424, 1429 (10th Cir. 1998). When
the actual receipt date for a right-to-sue letter is unknown, the Tenth Circuit has implicitly sanctioned up to a fiveday mailing time presumption from the date of the letter. See Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir.
2001). Assuming a five-day presumption in this case, Plaintiff received the right to sue letter on September 13,
2014, making his 90-day deadline December 12, 2014. He filed his Complaint in this case on January 15, 2015, well
beyond this date.
18

Title VII of the Civil Rights Act of 1964 prohibits unlawful employment practices on the basis of race,
color, religion, sex, or national origin.
19

San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Hasten v. Phillips Petroleum
Co., 640 F.2d 274, 277 (10th Cir. 1981).
20

Aguinaga v. United Food & Comm. Workers Int’l Union, 993 F.2d 1463, 1471–72 (10th Cir. 1993).

4

amendment can cure the defect.”21 Leave need not be granted if amendment would be futile.22
However, if the pro se plaintiff’s factual allegations are close to stating a claim but are missing
some important element, the Court should allow him leave to amend.23 The Court finds that
leave to amend in this case would be futile. The deficiencies with Plaintiff’s administrative
exhaustion are not curable and this Court’s jurisdiction is preempted as to acts protected by the
National Labor Relations Act.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Dismiss (Doc. 7) is granted. This case is hereby dismissed without prejudice.
IT IS SO ORDERED.
Dated: March 23, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

21

Denton v. Hernandez, 504 U.S. 25, 34 (1992).

22

See Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010).

23

Id. (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

5