Moreno v. Kan. City Steak Co., Case No. 17-cv-02029-DDC-KGS
| Decision Date | 13 July 2017 |
| Docket Number | Case No. 17-cv-02029-DDC-KGS |
| Parties | PAULA MORENO, Plaintiff, v. KANSAS CITY STEAK COMPANY, LLC, Defendant. |
| Court | U.S. District Court — District of Kansas |
On January 17, 2017, plaintiff Paula Moreno filed a Complaint alleging four claims against defendant Kansas City Steak Company, LLC. Doc. 1. In Counts One through Three, plaintiff asserts claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. In Count Four, plaintiff asserts a claim under the Kansas Workers Compensation Act, Kan. Stat. Ann. § 44-501 et seq.
On April 7, 2017, defendant filed a Motion for Partial Dismissal of Plaintiff's Complaint. Doc. 6. In it, defendant contends that the court must dismiss Counts One through Three because plaintiff failed to exhaust her administrative remedies. The court agrees. For the reasons explained below, the court denies defendant's Motion for Partial Dismissal of Plaintiff's Complaint and also grants plaintiff leave to file an amended complaint. The amended pleading must address the jurisdictional issues addressed in this Order.
Plaintiff worked for defendant from March 2009 to March 2015. In April 2012, plaintiff's work gloves caught in a conveyor belt, injuring the smallest finger on her right hand tothe point that one of the joints was immovable. Plaintiff received medical attention for her injury through workers compensation benefits, and began using a splint at work per her doctor's orders.
Over time, plaintiff's injury worsened. She began experiencing intermittent muscle and tendon pain in her right hand, wrist, and forearm. Eventually, the pain spread to her shoulder. Worker's compensation again allowed plaintiff to seek medical attention. But, when plaintiff's treating physician advised her to see a hand specialist, defendant refused and would not allow her to seek further treatment. Plaintiff told defendant about her continuing pain and discomfort several times between 2012 and 2014.
Plaintiff's supervisor questioned whether plaintiff truly was injured and the supervisor got angry with her. Plaintiff's supervisor physically pushed plaintiff twice, "yelling at [her] for using her left hand instead of her injured right hand." Doc. 1 at 5. Some time later, plaintiff went to human resources to inform them of the pushing incident and to complain, again, about her continuing injury. Plaintiff alleges that human resources told her "that if she made a report she would not be able to work for" defendant. Id.
On March 26, 2015, following another unpleasant interaction between plaintiff and her supervisor, defendant terminated plaintiff's employment. Believing she was terminated for discriminatory reasons, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("the EEOC") and the Kansas Human Rights Commission ("the KHRC"). Where her KHRC Charge ("the Charge") asks what "unlawful employment practice" she alleged defendant employed in violation of the Kansas Acts Against Discrimination, Kan. Stat. Ann. § 44-1001 et seq., plaintiff checked the boxes for race, color, national origin, disability, and retaliation. Doc. 2 at 4.
Plaintiff's Charge alleged only the following facts: she worked for defendant from March 16, 2009, to March 27, 2015, and her last position was in packaging; she is from Mexico; her son has a disability; defendant knew about her son's disability starting in March 2009; her supervisor physically harassed her on December 23, 2014, by pushing her twice; and that defendant terminated her employment on March 27, 2015, because of her national origin and her "association with [her] son, who has a disability." Id. at 4-5.
The EEOC issued plaintiff a Right to Sue Letter on October 20, 2016. She then filed this lawsuit. Her Complaint alleges that defendant violated the ADA by failing to accommodate her disability (i.e., her injured finger), by retaliating against her for seeking accommodations, and by physically harassing her and disciplining her because of her disability. The Complaint also alleges a retaliation claim under the Kansas Workers Compensation Act.
Defendant has filed a Motion for Partial Dismissal. In its Motion, defendant contends that plaintiff's ADA claims exceed the scope of her Charge, and so plaintiff has failed to exhaust her administrative remedies as the ADA requires. The court considers the parties' arguments below.
Defendant's Memorandum in Support its Motion (Doc. 7) and Reply (Doc. 10) present a threshold procedural question that the court must decide before it can begin to analyze the parties' arguments. While defendant labels its motion to dismiss as one under Federal Rule of Civil Procedure 12(b)(6), the legal standards section of its Memorandum in Support begins with the following propositions: Doc. 7 at 4 (citations omitted). This language invokes Rule 12(b)(1). Defendant then continues, mentioning—albeit briefly—the legal standard for a Rule 12(b)(6) motion. Defendant's Reply does not clarify its intentions. See Doc. 10 at 8 . So, defendant's papers alone do not permit the court to discern whether defendant brings a Rule 12(b)(1) or Rule 12(b)(6) motion.
But the court must determine which subdivision of the Rule applies because "[d]ifferent standards apply to a motion to dismiss based on lack of subject matter jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). If the question presented by defendant's motion truly is a jurisdictional one,2 then the court may not reach any aspect of the merits of plaintiff's Complaint under a Rule 12(b)(6) motion. As the Supreme Court explained in Bell v. Hood:
[I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy.
327 U.S. 678, 682 (1946); accord Oppenheim v. Sterling, 368 F.2d 516, 520 n.16 (10th Cir. 1966). So, typically, the court may dismiss a complaint for failing to state a claim for relief onlyafter it has found that subject matter jurisdiction exists. Id. The court thus must determine whether defendant's motion presents a motion to dismiss under Rule 12(b)(6) or Rule 12(b)(1) before it properly can consider any aspect of the parties' merit arguments. See Muscogee (Creek) Nation, 669 F.3d at 1167 ().
Despite the Rule 12(b)(6) label defendant places on its Motion to Dismiss, the court must construe it as a motion under Rule 12(b)(1) if the question it presents is jurisdictional. In other words, if the question whether the court should dismiss plaintiff's Complaint for failure to exhaust her administrative remedies is jurisdictional, then the court must consider defendant's motion as one under Rule 12(b)(1). To decide this question, the court relies on ADA and Title VII cases because, as the Tenth Circuit has noted, "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 [it] clear that the procedural requirements of those two provisions must be construed identically." Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309 (10th Cir. 2005) (citing 42 U.S.C. § 12117(a)).
In Shikles v. Sprint/United Management Co., the Tenth Circuit held that "a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII—not merely a condition precedent to suit." Id. at 1317 (citing Jones v. Runyon, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996)). In the years after Shikles, the Circuit has questioned the vitality of the case's holding. See, e.g., Wickware v. Manville, 676 F. App'x 753, 767 & n.4 (10th Cir. 2017) (); Hung Thai Pham, 630 F. App'x at 737-38 (); Arabalo v. City of Denver, 625 F. App'x 851, 859-60, 864 (10th Cir. 2015) (). The questions about the continuing vitality of Shikles arise from the Tenth Circuit's decision in Gad v. Kansas State University, 787 F.3d 1032 (10th Cir. 2015). But Gad did not overrule Shikles—at least not explicitly. Instead, the Circuit's decision in Gad appears limited to the question before it in ...
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