Moreno-Woods v. T-Mobile Wireless et al
MEMORANDUM AND ORDER granting 9 Motion to Dismiss; granting 15 Motion to Dismiss for Failure to State a Claim; denying 20 Motion for Summary Judgment. The clerk is instructed that plaintiff cannot file a complaint alleging an ADA claim against defendant unless she attaches her timely EEOC charge and right to sue letter to the complaint. Signed by District Judge Monti L. Belot on 11/16/2012. Mailed to pro se party Natalia Moreno-Woods by regular mail. (alm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
T-MOBILE USA, INC.,
MEMORANDUM AND ORDER
This case comes before the court on defendant’s motions to
dismiss (Docs. 9, 15) and plaintiff’s motion for summary judgment
The motions have been briefed and are ripe for decision.
(Docs. 14, 17, 19).
Defendant’s motions are granted and plaintiff’s
motion is denied for the reasons herein.
Facts and Procedural History
Plaintiff was hired by defendant on September 26, 2005.
February 2011, Plaintiff requested time off from work due to a
Plaintiff also requested an “accommodation” from
Plaintiff was terminated on March 23, 2011.
filed a charge with the EEOC on an unknown date but has not yet
received a decision.
On September 16, 2011, plaintiff filed a petition in the
District Court of Sedgwick County, Kansas.
action to this court.
Defendant removed the
Judge Crow granted defendant’s motion to
dismiss, finding that plaintiff had failed to state a claim for
The accommodation appears to be the request to grant plaintiff
time off from work.
At that time, plaintiff had not made any allegations of a
violation of the ADA.
amend her complaint.
Judge Crow gave plaintiff an opportunity to
Plaintiff did so.
On April 6, 2012, Judge Crow
finding that she did not correct the pleading deficiencies.
On May 12, 2012, plaintiff filed a complaint in the case
contract, defamation, interference with economically advantageous
relationships, and breach of the covenant of good faith and fair
dealing. (Doc. 1). Plaintiff also asserted alleged violations of the
FMLA and the ADA.
Defendant moved to dismiss plaintiff’s complaint
on August 1, 2012. In response, plaintiff filed an amended complaint.
Plaintiff’s amended “petition,” filed September 24, 2012, only asserts
an ADA claim.
Defendant filed an amended motion to
dismiss which addressed plaintiff’s amended complaint.
Motion to Dismiss Standards: FRCP 12(b)(6)
The standards this court must utilize upon a motion to dismiss
are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).
pleaded facts and the reasonable inferences derived from those facts
On October 26, 2012, plaintiff filed another amended complaint.
However, plaintiff failed to seek leave to file. Pursuant to Fed. R.
Civ. P. 15(a), a plaintiff may only amend her complaint once as a
matter of course. Subsequent amendments must be done with the court’s
approval. Because plaintiff failed to comply with Rule 15(a), the
amended complaint must be stricken from the record.
are viewed in the light most favorable to plaintiff.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
Defendant moves to dismiss plaintiff’s ADA claim on the basis
that she failed to comply with the statutory requirement of filing a
limitations within the statute to provide a particular time frame in
which personal actions may be brought under the ADA.
First, as a
prerequisite, the employee must file a charge with the EEOC within the
required statutory time period. 42 U.S.C. § 2000e-5(b). Second, the
EEOC has exclusive jurisdiction over the claim for the first 180 days
after the charge is filed.
Id. § 2000e-5(f)(1). Finally, once the
EEOC determines not to pursue the charge, the employee has ninety days
from receipt of the right to sue letter in which to file suit.
complaint, plaintiff has not received her right to sue letter.
Moreover, plaintiff has not provided the court with any
information concerning her charge, i.e. the date filed and the
contents of the charge, even though plaintiff has been afforded two
opportunities to respond to defendant’s motions.
See Docs. 14, 19.
Rather, plaintiff appears to argue that the filing prerequisites are
not a bar to her case because defendant did not file a timely motion
This argument has no merit.
Defendant filed a motion to
dismiss raising this issue within the time allowed under the rules.
Fed. R. Civ. P. 12(b).
plaintiff must have filed a charge with the EEOC within 300 days of
See 42 U.S.C. § 2000e-5(e)(1).
Plaintiff has the
prerequisite to suit by showing that her charge was filed within 300
days of her termination.
1167 (10th Cir. 2007).
Montes v. Vail Clinic, Inc., 497 F.3d 1160,
Plaintiff has not done so.
Defendant’s motion to dismiss is granted, without prejudice.
The clerk is instructed that plaintiff cannot file a
complaint alleging an ADA claim against defendant unless she attaches
her timely EEOC charge and right to sue letter to the complaint.
IT IS SO ORDERED.
day of November 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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