Ewigman v. Tipton et al
ORDER granting 17 Defendants' Motion to Dismiss. Signed on 12/5/17 by District Judge Ortrie D. Smith. (Order mailed to Plaintiff) (Matthes Mitra, Renea) Copy mailed on 12/5/2017 to plaintiff at address on file via regular & certified mail. (7012 3460 0001 7395 8873) (Houston, Kiambu).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SARA LYNN EWIGMAN,
DANNY TIPTON, and
Case No. 17-00165-CV-W-ODS
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
Pending is Defendants’ Motion to Dismiss. Doc. #17. For the following reasons,
Defendants’ motion to dismiss is granted.
Plaintiff Sara Ewigman, proceeding pro se, initiated the above-captioned matter
on March 8, 2017. Doc. #1. In the Complaint, Plaintiff alleges Defendants Danny
Tipton and Zachary Coughlin violated the Americans with Disabilities Act (“ADA”).
Plaintiff maintains Defendants failed to accommodate her disability, and retaliated
against her while she was employed with Hogan Preparatory Academy.
Plaintiff alleges she filed a charge of discrimination against Defendants with the
Equal Employment Opportunity Commission (“EEOC”) on November 9, 2016. Id. at 4.
Plaintiff represents she received a right to sue letter from the EEOC, but did not attach a
copy of that letter as directed by the form complaint. Id. at 4. Plaintiff alleges she did
not file a charge of discrimination against Defendants with the Missouri Commission on
Human Rights (“MCHR”), and did not receive a right to sue letter from MCHR. Id.
However, documents attached to the Complaint establish Plaintiff dually filed her charge
of discrimination with the EEOC and the MHCR, and the MCHR (in addition to the
EEOC) issued a right to sue letter. Doc. #1-1, at 1-2.
Defendants move to dismiss Plaintiff’s claims for two reasons. First, Defendants
argue Plaintiff’s lawsuit is untimely because it was not filed within 90 days of receipt of
the right to sue letter issued by the EEOC, and therefore, the lawsuit must be
dismissed. Defendants attached a copy of the EEOC’s right to sue letter to their motion.
Doc. #17-1. The EEOC’s right to sue letter, which was issued on November 14, 2016,
informed Plaintiff that her “lawsuit must be filed WITHIN 90 DAYS of your receipt of
this notice; or your right to sue based on this charge will be lost.” Id. (emphasis in
original). Second, Defendants argue Plaintiff failed to state a claim against Defendants
for violations of the ADA because there is no individual liability under the ADA.
Plaintiff failed to timely respond to Defendants’ motion to dismiss. The Court
directed Plaintiff to show cause why Defendants’ motion should not be granted. Doc.
#18. Plaintiff responded, asking for additional time to file her response. Doc. #19.
Plaintiff’s request was granted, and on November 15, 2017, Plaintiff filed her response.
Doc. #21. Therein, Plaintiff stated only the following:
On October 2, 2017[,] the Defendants filed a motion to dismiss Doc. #17.
After consideration, I, the Plaintiff have chosen to move forward with the
case and disregard the Defendants’ Motion for Dismissal. I, the Plaintiff,
believe the extra time was a necessity in order to help me procede [sic] in
the case Pro Se.
Doc. #21. Defendants filed their reply (Doc. #22), and the motion to dismiss is now ripe
The liberal pleading standard created by the Federal Rules of Civil Procedure
requires Aa short and plain statement of the claim showing that the pleader is entitled to
relief.@ Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed. R. Civ. P.
8(a)(2)). ASpecific facts are not necessary; the statement need only >give the defendant
fair notice of what the…claim is and the grounds upon which it rests.=@ Id. (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling on a motion to dismiss, the
Court Amust accept as true all of the complaint=s factual allegations and view them in the
light most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472,
476 (8th Cir. 2008).
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is
not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In keeping with these principles a court considering a motion to dismiss
can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id. at 679. A claim is facially plausible if it allows the reasonable inference that the
defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd.,
729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009).
A. Timeliness of Complaint
Individuals who bring suit under Title VII must file the suit within 90 days after
receipt of a right to sue letter. 42 U.S.C. § 2000e-5(f)(1) (2000); Baldwin Cty. Welcome
Ctr. v. Brown, 466 U.S. 147, 149 (1984). “Title I of the ADA, which prohibits
employment discrimination on the basis of disability, explicitly incorporates the powers,
remedies, and procedures of Title VII, making clear that the procedural requirements of
those two provisions must be construed identically.” Dewberry v. Alphapointe Ass’n for
the Blind, No. 05-187, 2005 WL 3479507, at * 1 (W.D. Mo. Dec. 20, 2005) (quoting
Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309 (10th Cir. 2005)). Because the
procedural requirements are to be construed exactly the same, cases discussing the
90-day limitation period under Title VII will apply to the ADA.
“Generally, the ninety-day filing period begins to run on the day the right to sue
letter is received at the most recent address that a plaintiff has provided the EEOC.” Hill
v. John Chezik Imps., 869 F.2d 1122, 1124 (8th Cir.1989). Courts presume a properly
mailed document is received by the addressee within three days after the date of
mailing. Fed. R. Civ. P. 6(d) (2017); Baldwin Cty. Welcome Ctr., 466 U.S. at 148 n.1;
Davis v. U.S. Bancorp, 383 F.3d 761, 766 (8th Cir. 2004) (citation omitted) (stating a
properly mailed document is presumed to be received by the addressee); Lucht v.
Encompass Corp., 491 F. Supp. 2d 856, 862 (S.D. Iowa 2007) (citations omitted); Rich
v. Bob Downes Chrysler Plymouth, Inc., 831 F. Supp. 733, 735 (E.D. Mo.1993) (citation
The right to sue letter from the EEOC was dated November 14, 2016. Doc. #171, at 2. The right to sue letter contains the same address that Plaintiff provided to this
Court. Docs. #1; #17-1, at 2. Plaintiff does not set forth any argument (or evidence) to
rebut the presumption that she received the right to sue letter from the EEOC, and that
she received the letter within three days of the letter being mailed. Thus, the Court
presumes Plaintiff received the right to sue letter from the EEOC on or about November
17, 2016. Plaintiff, however, did not file her lawsuit within 90 days of receiving the right
to sue letter. She waited until March 8, 2017, to file her lawsuit. Doc. #1. For this
reason alone, Plaintiff’s lawsuit must be dismissed.
Nonetheless, Plaintiff contends she needed “extra time” to help her proceed pro
se in this matter. “A document filed pro se is to be liberally construed.” United States v.
Sellner, 773 F.3d 927, 932 (8th Cir. 2014) (citations and internal quotations omitted).
The Court will construe Plaintiff’s argument as one for equitable tolling. See Hill, 869
F.2d at 1124 (noting the 90-day limitation period is subject to equitable tolling in
appropriate circumstances). Generally, courts have “reserved the remedy of equitable
tolling for circumstances which were truly beyond the control of the plaintiff.” Id. The
Supreme Court noted the application of equitable tolling in instances where the plaintiff
received inadequate notice, a motion for appointment of counsel was pending, a court
led the plaintiff to believe she did everything required of her, or affirmative misconduct
on the part of the defendant that lulled the plaintiff into inaction. Baldwin Cty. Welcome
Ctr., 466 U.S. at 151 (citations omitted). Significantly, the Supreme Court stated: “One
who fails to act diligently cannot invoke equitable principles to excuse that lack of
Plaintiff has not presented the Court with any recognized basis to equitably toll
the limitation period. The EEOC issued its right to sue letter to Plaintiff at the address
she also provided to the Court, and informed Plaintiff, in no uncertain terms, that she
“must” file her lawsuit within 90 days of receiving the letter, or risk losing her right to
sue. Doc. #17-1. Plaintiff failed to file her lawsuit within the required timeframe, and
failed to act diligently. Thus, equitably tolling is not warranted. Accordingly, the Court
grants Defendants’ motion to dismiss, and dismisses Plaintiff’s claims.
B. Individual Liability
Defendants, who are or were employed by Hogan Preparatory Academy, argue
Plaintiff’s claims should be dismissed because there is no individual liability under the
ADA. The Eighth Circuit has not addressed whether individuals may be liable under
Title I of the ADA for employment discrimination claims; however, this Court and other
district courts within the Eighth Circuit have determined the Eighth Circuit would not
impose individual liability under Title I of the ADA. Mills v. St. Louis Cty. Gov’t, No.
17CV00257, 2017 WL 4778571, at * 2 (E.D. Mo. Oct. 23, 2017) (citations omitted); Gard
v. Dooley, No. 14-CV-4023, 2017 WL 782279, at * 5 (D. S.D. Feb. 28, 2017) (citations
omitted); see also Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)
(citations omitted) (finding no individual liability under Title II of the ADA, and noting at
least three circuits have concluded individuals do not qualify as “employers” under Title I
of the ADA). Because Plaintiff sued Defendants in their individual capacity and there is
no individual liability under the ADA, the Court must dismiss Plaintiff’s claims against
Defendants. For this additional reason, Defendants’ motion to dismiss is granted.
For the foregoing reasons, Defendants’ motion to dismiss is granted. Plaintiff’s
claims are dismissed, and the matter is closed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: December 5, 2017
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