Lister v. Griffin et al

Filing 33

MEMORANDUM AND ORDER granting 29 Motion by defendant SMG Management to Dismiss for Failure to State a Claim. Signed by District Judge Richard D. Rogers on 7/20/2012.Mailed to pro se party James Lee Lister by regular mail (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES LEE LISTER,
Plaintiff,
vs.

Case No. 11-1183-RDR

SMG MANAGEMENT,
Defendant.
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant SMG
Management’s motion to dismiss.

SMG Management seeks dismissal

because (1) plaintiff has failed to state a claim upon which relief
can

be

granted;

and

(2)

plaintiff’s

claims

are

time-barred.

Plaintiff, who is proceeding pro se and in forma pauperis, has
failed to file a timely response to SMG Management’s motion.
Having carefully reviewed the motion, the court is now prepared to
rule.
I.
Plaintiff asserts Title VII claims against SMG Management. He
claims that he was not promoted during his employment with SMG
Management and then fired from his employment due to his race,
African-American, and his religion, Islamic.

Plaintiff filed this

action on July 14, 2011.

In his original complaint, plaintiff

named

Kim

Frank

defendants

Griffin

then

and

filed

a

Hillard

motion

to

as

defendants.

dismiss,

contending

These
that

plaintiff had sued the wrong defendants because personal capacity
actions against individual supervisors are not allowed under Title
VII.

The court agreed in an order of January 12, 2012.

The court,

however, allowed plaintiff fifteen days to name his employer as the
defendant.

Plaintiff subsequently filed an amended complaint on

February 7, 2012 naming SMG Management as the defendant.
Management was ultimately served on March 8, 2012.

SMG

SMG Management

filed the instant motion on April 9, 2012.
II.
In its motion, SMG Management contends that plaintiff has
failed to state a claim against it for discrimination in violation
of Title VII based upon race or religion.

SMG Management suggests

that facts set forth in the complaint fail to adequately state a
claim for race and religion discrimination.

SMG Management argues

that plaintiff has not set forth sufficient facts within the
complaint to state a claim to relief that is plausible on its face.
SMG Management also contends that plaintiff’s claims against
it are time-barred.

SMG Management points out the plaintiff filed

his amended complaint after the expiration of the ninety-day period
following his receipt of a right-to-sue letter.
III.
In ruling on defendant’s motion to dismiss for failure to
state a claim under Fed.R.Civ.P. 12(b)(6), the court assumes as
true all well-pleaded factual allegations and determines whether

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they plausibly give rise to an entitlement of relief.
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

To survive a motion to dismiss,

a complaint must contain sufficient factual matter to state a claim
which is plausible-—and not merely conceivable-—on its face. Id.;
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

555

(2007).

In

determining whether a complaint states a plausible claim for
relief, the court draws on its judicial experience and common
sense.

Iqbal, 556 U.S. at 679.

The court need not accept as true those allegations which
state only legal conclusions. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Plaintiff bears the burden to frame his complaint
with enough factual matter to suggest that he is entitled to
relief; it is not enough to make threadbare recitals of a cause of
action accompanied by mere conclusory statements.
at 679.

Iqbal, 556 U.S.

Plaintiff makes a facially plausible claim when he pleads

factual content from which the court can reasonably infer that
defendant is liable for the misconduct alleged.

Id.

Plaintiff

must show more than a sheer possibility that defendant has acted
unlawfully-—it is not enough to plead facts that are “merely
consistent with” defendant’s liability.
Twombly, 550 U.S. at 557).

Id. at 678 (quoting

A pleading which offers labels and

conclusions, a formulaic recitation of the elements of a cause of
action, or naked assertions devoid of further factual enhancement
will not stand.

Id.

Similarly, where the well-pleaded facts do

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not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—-but not “shown”-—that the
pleader is entitled to relief.

Id.

Finally, the degree of

specificity necessary to establish plausibility and fair notice
depends on context, because what constitutes fair notice under
Fed.R.Civ.P. 8(a)(2) depends upon the type of case.

Robbins v.

Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 232–33 (3rd Cir. 2008)).
The court construes plaintiff’s pro se complaint liberally and
holds it to a less stringent standard than formal pleadings drafted
by lawyers.

See Hall, 935 F.2d at 1110.

The court, however, does

not assume the role of advocate for a pro se litigant.

See id.

Recently, in Khalik v. United Airlines, 671 F.3d 1188, 1190
(10th

Cir.

2012),

the

Tenth

Circuit

clarified

the

pleading

requirements for a discrimination action. The court explained that
“while Plaintiff is not required to set forth a prima facie case
for each element [of discrimination], [he] is required to set forth
plausible claims.”

671 F.3d at 1193.

“While specific facts are

not necessary, some facts are.” Id. (internal citations omitted).
“[A] plaintiff should have at least some relevant information to
make the claims plausible on their face.”

Id.

IV.
In a form complaint supplied by the court, plaintiff indicated
that he was proceeding under Title VII. He further alleged that he

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was discriminated because of his race and his religion.

In the

portion of the complaint asking him to “[d]escribe specifically the
conduct [he] believe[s] is discriminatory,” he wrote the following:
Around 11-2009 I was hired at the intrust bank arena
by former operations manager Shawn McGregor a White male.
On 12-7-2009 myself and 3 other part-time operations was
given orientation by human resources Kim Hillard a White
female, and we was told they promote from within. Twice
a full time position came open myself, a blk male was
denied promotion to full time by operations director
Frank Griffin and human resources Kim Hillard. I was
well qualified for the position as was Rick Ross a blk
male. Both times position was given to two white males.
I was also fired unlawfully. I feel cause of my Race and
denied promotion by Race.
The court is in agreement with some of SMG Management’s
contentions. Even viewing the complaint liberally, the court finds
that plaintiff has failed to adequately state any claims based upon
religious

discrimination.

Plaintiff’s

mention of any basis for these claims.

complaint

contains

no

The court also finds that

plaintiff has failed to state a claim that his termination was
based upon race discrimination.

The complaint contains only

conclusory allegations of discrimination.
no facts to support this claim.
that

plaintiff

has

The complaint contains

The court, however, is persuaded

sufficiently

alleged

claims

of

race

discrimination in the denial of promotions. He has alleged that he
was qualified for the positions and that they were given to whites.
Such

allegations,

particularly

when

the

court

considers

that

plaintiff is proceeding pro se, are adequate to avoid a motion to
dismiss under Rule 12(b)(6).
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V.
The court shall now turn to the defendant’s arguments that
plaintiff’s claims are time-barred.

SMG Management contends that

this action is time-barred because plaintiff failed to bring the
claims against it within 90 days of his receipt of a right-to-sue
letter as required by Title VII.
A plaintiff must initiate litigation on a Title VII claim
within ninety days from the date he receives a “right-to-sue”
letter from the EEOC.

See 42 U.S.C. § 2000e-5(f)(1) (providing

filing deadlines for Title VII claims). This timing requirement is
a prerequisite to a civil suit.

Croy v. Cobe Labs., Inc., 345 F.3d

1199, 1202 (10th Cir. 2003).
The court is compelled to grant the defendant’s argument.
Based upon the present record, SMG Management is entitled to
dismissal.

The record shows that plaintiff failed to bring suit

against SMG Management within 90 days of the receipt of the rightto-sue letter.

In reaching this conclusion, the court notes that

plaintiff

failed

has

to

respond

to

SMG

Management’s

motion.

Plaintiff understands the need to respond to motions to dismiss
because he has done so in the past.

See Doc. # 15.

Plaintiff may

have had grounds to avoid dismissal by arguing that his amended
complaint related back to the filing of his original complaint.
See Fed.R.Civ.P. 15(c)(1)(C) (amendment that changes party relates
back if the new party (i) received such notice of the action that

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it will not be prejudiced in defending on the merits; and (ii) knew
or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s
identity). Plaintiff, however, has waived this argument by failing
to respond to the defendant’s motion.
demonstrating
satisfied.

that

the

requirements

Plaintiff has the burden of
of

Rule

15(c)(1)(C)

are

See Green v. Union Foundry Co., 281 F.3d 1229, 1233

(11th Cir. 2002) (“Once the defendant contests this issue the
plaintiff has the burden of establishing that he met the ninety day
filing requirement.”); Al-Dahir v. FBI, 454 Fed.Appx. 238, 242 (5th
Cir. 2011) (“Plaintiffs have the burden to demonstrate that an
amended

complaint

relates

back

under

Rule

15(c).”).

Since

plaintiff failed to respond to the defendant’s motion to dismiss,
he has not done so.

Accordingly, the court must grant SMG

Management’s motion to dismiss.
IT IS THEREFORE ORDERED that defendant SMG Management’s motion
to dismiss (Doc. # 29) be hereby granted.

Plaintiff’s complaint

against SMG Management is hereby dismissed as time-barred.
IT IS SO ORDERED.
Dated this 20th day of July, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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