Price v. Kroger

Filing 19

MEMORANDUM OPINION AND ORDER: (1) Dft's 10 Motion to Dismiss is GRANTED. (2) Clerk shall strike Pla's response "to the motion to dismiss from Joseph Hansen and Kevin Sullivan" ( 18 ) from the docket in the present action and file it in Lex Civil Action No. 5:14-CV-94 for consideration. Signed by Judge Joseph M. Hood on March 30, 2015. (AWD) cc: COR,Pla via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BRYAN PRICE,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
KROGER,
Defendant.

Civil Case No. 14-cv-257-JMH

MEMORANDUM OPINION AND ORDER

***
This matter is before the Court upon the Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) [DE 10], filed by Kroger
Limited Partnership I, which states that Plaintiff Price has
incorrectly identified it as The Kroger Co.

Plaintiff Price has

filed a Response [DE 16], objecting to the Motion to Dismiss,
and Defendant has filed a Reply in support of its Motion [DE
17].1
I.
To

survive

a

motion

to

dismiss,

a

plaintiff

must

demonstrate “a claim to relief that is plausible on its face.”
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

555

(2007).

A

plaintiff’s allegations must be sufficient to raise his or her
claims

above

a

speculative

level.

Id.

Neither

"[t]hreadbare

1
Defendant has filed another document [DE 18] which states that it is a
response “to the motion to dismiss from Joseph Hansen and Kevin Sullivan.”
It appears that this document is actually responsive to pleadings filed in
Lexington Civil Action No. 5:14-cv-94.
Accordingly, the Court will direct
the Clerk to strike it from the docket in the present action and file it in
that matter for consideration there.

recitals of the elements of a cause of action, supported by mere
conclusory statements" nor "the mere possibility of misconduct"
is sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This
is no less true when a plaintiff is proceeding pro se. See
Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citing
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988)).

In considering a motion to dismiss, the court may

rely on documents attached to or referred to in a complaint
without

converting

the

motion

into

a

motion

for

summary

judgment, as documents attached to pleadings are considered part
of the pleading itself. See Nieman v. NLO, Inc., 108 F.3d 1546,
1554 (6th Cir. 1997); Weiner v. Klais & Co., 108 F.3d 86, 89
(6th Cir. 1997);
instance,

see also

Plaintiff’s

Fed. R. Civ. P. 10(c).

Complaint

references

the

In this
settlement

agreements that he reached with Defendant, and the Court may
consider them without converting the motion to dismiss into a
motion for summary judgment.
II.
In his Complaint, Price claims that Kroger discriminated
against him because of his race when he received a disciplinary
warning in December 2004 and that Kroger then terminated his
employment in retaliation for filing a December 2004 EEOC charge
concerning that disciplinary warning.
EEOC

charge

against

Kroger

on

Price filed his initial

December

22,

2004.

Price’s

employment was terminated by Kroger on March 26, 2005.

The EEOC

declined to pursue Price’s initial charge and issued a Notice of
Right to Sue on April 14, 2005.
Price filed a second EEOC charge against Kroger on October
5,

2005,

alleging

that

Kroger

terminated

his

employment

in

retaliation for filing his December 2004 charge with the EEOC.
Eventually, Price and Kroger entered into a Voluntary Settlement
Agreement and Release with respect to that EEOC charge in which
Price agreed, in exchange for certain consideration, to:
. . . irrevocably waive[], release[] and
discharge[] [Kroger], its successors, parent
company,
corporate
affiliates,
assigns,
officers,
directors,
shareholders,
attorneys,
employees,
agents,
trustees,
representatives, insurance administrators,
and insurers, from any and all claims
liabilities, demands and causes of action
that Price may have arising from (1) Price’s
employment relationship with [Kroger] or the
cessation of that relationship, (2) any
claims contained in [the EEOC charge], (3)
any and all claims under Title VII of the
Civil Rights Act of 1964, and (4) any and
all claims arising under federal, state or
local laws, all labor and employment laws,
and
laws
prohibiting
employment
discrimination . . .
[DE 12 at 1 (filed under seal).] Price signed the Voluntary
Settlement Agreement and Release on February 1, 2006.

Kroger’s

agent signed it on February 28, 2006.
Price has filed a copy of a second document, the parties’
Negotiated Settlement Agreement, prepared on the letterhead of

the

Louisville

Area

Office

of

the

U.S.

Equal

Employment

Opportunity Commission and which provides that, “[i]n exchange
for

satisfactory

fulfillment

by

[Kroger]

of

the

promises

contained in paragraph (3) of this Agreement, Bryan Price agrees
not to institute a lawsuit with respect to” the December 2004
EEOC charge.”

[DE 16-1.]

The Negotiated Settlement Agreement

also provides that “[t]he parties agree that this Agreement may
be specifically enforced in court and may be used as evidence in
a subsequent proceeding in which any of the parties allege a
breach of this Agreement.”

[Id.]

Price signed that agreement

on February 15, 2006, in the space designated for “Respondent,”
and Kroger’s agent signed it on March 13, 2006, in the space
designated for “Charging Party.”

An arrow appears to indicate

that, in fact, Price is the Charging Party and Kroger is the
Respondent before the EEOC.
A settlement agreement is an enforceable contract between
the

parties.

D&R

Acoustics,

Inc.

v.

Reynolds,

No.

2011-CA-

002271-WC, 2012 WL 2989184 (Ky. Ct. App. July 20, 2012) (citing
Whitaker v. Pollard, 25 S.W.3d 466, 469 (Ky. 2000)); see also
Johnson v. Hanes Hosiery, No. 94-6184, 57 F.3d 1069 (6th Cir.
1995)

(Table)

(holding

that

district

court

did

not

abuse

discretion in dismissing plaintiff’s action based upon execution
of a release of Title VII claim against defendant). “‘[I]n the
absence

of

ambiguity

a

written

instrument

will

be

enforced

strictly according to its terms, and a court will interpret the
contract's terms by assigning language its ordinary meaning and
without resort to extrinsic evidence.’” Id. (quoting Frear v.
P.T.A. Indus., Inc., 103 S.W.3d 99, 106 (Ky. 2003)).
In the instant matter, no one disputes the existence or the
applicability of the Voluntary Settlement Agreement and Release
and the Negotiated Settlement Agreement or even that they would
apply to bar both Price’s discrimination claim based on the
disciplinary

warning

and

his

retaliation

filing of the EEOC claim because.

claim

based

on

his

Both incidents clearly fall

within the purview of the agreements and predate the parties’
decision to enter into the waiver, release, and discharge of all
claims

arising

from

Price’s

employment

with

Kroger—including

those claims arising under Title VII.
Price,

however,

urges

the

Court

to

conclude

that

the

Negotiated Settlement Agreement is unenforceable because it was
signed by both parties in the incorrect spaces; because the
Voluntary

Settlement

Agreement

and

Release

should

have

been

signed after the Negotiated Settlement Agreement; because the
Kroger Law Department and Equal Opportunity Commission should
have made sure that all paperwork was filled out completely and
correctly and the failure to do so was “bad conduct by both
parties”; because “there were too many mistakes”; and because
the “U.S. Equal Employment Opportunity Commission states 1, 2,

There was no time line per agreement.”2

3, year contracts.

The

Court does not see any of these flaws, if they are in fact
flaws, as fatal to the enforcement of the agreements.

It is

clear who is a party to the agreements and what the terms of the
agreements are.

No one disputes that the signatures on the

agreements are authentic or that the parties intended to release
the claims at the time that the agreements were signed.

This is

not a case of “too many mistakes” or “bad conduct.”

Further,

with respect to Price’s argument about a time line, the Court
sees no reference to any contracts or time lines and concludes
that

this

argument

does

not

impact

the

enforcement

of

the

with

the

agreement in the context of this case.
Finally,
executive

he

board

argues
within

procedure at any time.”

that
15

days

“[o]nce
you

you

can

appeal

pursue

the

contract

This is simply not the case.

Even if

the Court does not take the Voluntary Settlement Agreement into
account, his claim is untimely under the applicable statute of
limitations.

A Title VII claim must be filed with the Court

within 90 days of the issuance of the EEOC’s Notice of Right to
Sue.

42 U.S.C. § 2000e-5(e)(1).

Price filed a charge with the

EEOC, and the EEOC declined to pursue the matter and issued a

2

In his Response, Price also adds that he has an “[a]dditional [c]omplaint”
and “want[s] to add race discrimination.” The Court already understands his
complaint
to
aver
race
discrimination
in
violation
of
Title
VII.
Accordingly, to the extent that his Response includes a motion to amend, it
shall be denied as moot.

Notice of Right to Sue on April 14, 2005.

Price took no action

until filing the Complaint in this matter on June 27, 2014,
almost 9 years after the statute of limitations ran on July 14,
2005.

His claim is now time-barred.
III.
Plaintiff’s ability to pursue this action is barred by his

own

release

of

his

claims

and,

in

the

alternative,

by

the

passage of time and the operation of the statute of limitations.
The Court need not and does not reach the merits of his claims
as he has failed to state a claim upon which relief can be
granted.

See Fed. R. Civ. P. 12(b)(6).

Accordingly, IT IS ORDERED:
(1)

that Defendant Kroger Limited Partnership I’s Motion

to Dismiss [DE 10] is GRANTED; and
(2)

that the Clerk shall strike Plaintiff’s response “to

the motion to dismiss from Joseph Hansen and Kevin Sullivan” [DE
18]

from

the

docket

in

the

present

action

and

file

it

Lexington Civil Action No. 5:14-cv-94 for consideration there.
This the 30th day of March, 2015.

in