Opinion
Case No. 03-4023-SAC
October 21, 2003
MEMORANDUM AND ORDER
This Title VII employment discrimination case comes before the court on defendant's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and plaintiff's motion to consolidate. Defendant contends that plaintiff has failed to exhaust his administrative remedies such that his claim of race discrimination under Title VII is barred.
Motion for Judgment
In deciding a Rule 12(c) motion for judgment on the pleadings, the district court employs the same standards governing a Rule 12(b)(6) motion to dismiss. Mock v. T.G. Y. Stores Co., 971 F.2d 522, 528-29 (10th Cir. 1992). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted).
The court liberally construes the allegations of a pro se complaint. See Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). However, the court cannot "assume the role of advocate for the pro se litigant," "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," or "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Title VII Exhaustion
Plaintiff's sole claim is brought pursuant to Title VII. Defendant contends that plaintiff's claim is time-barred because the events giving rise to the claim occurred more than 300 days before plaintiff filed his EEOC charge.
In a deferral state such as Kansas, a plaintiff alleging a violation of Title VII must file an administrative charge with the EEOC within 300 days after the alleged unlawful conduct occurs. See 42 U.S.C. § 2000e-5(e). This filing is a prerequisite to a civil suit under Title VII. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). The administrative remedy scheme is intended to give the employer prompt notice of the claim and to give the EEOC an opportunity for early conciliation or resolution. Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). A plaintiff who fails to raise a discrimination claim before the EEOC is precluded from raising that same claim in district court. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993).
It is undisputed that plaintiff first filed his charge of discrimination with the EEOC on June 21, 2002. In his original complaint, plaintiff alleged discrimination in failing to promote him to a specific position, but did not state a date when that failure to promote occurred. Defendant then filed a motion for more definite statement which plaintiff responded to, providing four dates for the allegedly discriminatory acts, the latest being January 22, 1999. Although the magistrate denied defendant's motion for a more definite statement, the magistrate deemed plaintiff's response to that motion to be a de facto amendment to his complaint. Thus the most recent alleged discriminatory conduct arose on January 22, 1999, over two years before plaintiff filed his EEOC charge. Because plaintiff's complaint, even as deemed amended, fails to include any unlawful acts occurring within 300 days of the date of his EEOC filing, plaintiff's complaint is untimely. It appears beyond doubt that the plaintiff can prove no set of facts in support of his Title VII claim which would entitle him to relief.
Motion to Amend
Plaintiff dos not challenge the finding that his Title VII claim was timely, but instead contends that the court should grant his pending motion to amend his complaint. Accordingly, the court considers plaintiff's motion to amend in light of defendant's 12(c) motion for judgment on the pleadings. See Gallardo v. Board of County Com'rs, Kearny County Kan., 857 F. Supp. 783, 787 (D. Kan. 1994) (on 12(c) motions, courts may grant leave to amend and "may dismiss causes of action rather than grant judgment."); Deck v. Engineered Laminates 2002 WL 368447, *5-6 (D. Kan. Feb. 21, 2002) (discussing amendment of 12(c) motions.)
The Court shall freely give plaintiff leave to amend "when justice so requires." Fed.R.Civ.P. 15. Motions to amend are matters of discretion for the trial court. Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). A refusal to grant leave to amend is normally justified by factors such as futility, undue delay, undue prejudice to the non-moving party, or bad faith of the moving party. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Futility Doctrine
Defendant contends that plaintiff's proposed amendments to his complaint are futile as a matter of law. A court may properly deny leave to amend if the amendment would prove futile. TV Communications Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir.), cert. denied, 506 U.S. 999 (1992).
"A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Jefferson County School Dist. No. R-1 v. Moody's Investor's Services, 175 F.3d 848, 859 (10th Cir. 1999) (citation omitted). Thus, the court considers the sufficiency of the plaintiff's claims using the same analysis as would govern a Rule 12(b)(6) motion to dismiss for failure to state a claim. Stetz, 70 F. Supp.2d at 121; see Grossman v. Novell, Inc., 120 F.3d 1112, 1118, 1125-26 (10th Cir. 1997) . . . Dismissal pursuant to Rule 12(b)(6) is proper when the face of the complaint "indicates the existence of an affirmative defense such as noncompliance with the limitations period." Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1311 n. 3 (10th Cir. 1999).Pedro v. Armour Swift-Eckrich, 118 F. Supp.2d 1155, 1158 (D. Kan. 2000).
In his proposed amended complaint, plaintiff seeks to add claims that defendant violated the following statutes: the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq; the Vietnam Era Veterans Readjustment Assistance Act, 38 U.S.C. § 4212; and the Civil Rights Act of 1866, 42 U.S.C. § 1981. For the reasons set forth below, the court finds that each of these claims is subject to dismissal, making the proposed amendment futile.
Age Discrimination in Employment Act
The ADEA mandates that "[n]o civil action may be commenced by an individual under this section until 60 days after a charge" has been filed with the EEOC. 29 U.S.C. § 626(d). Exhaustion of administrative remedies is a jurisdictional prerequisite. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996). Because age discrimination is statutorily prohibited in Kansas, see K.S.A. §§ 44-1111 et seq., the ADEA requires that plaintiff file his EEOC charge within 300 days of the alleged discrimination. 29 U.S.C. § 626(d)(2), 633(b). None of the acts stated in plaintiff's EEOC charge was alleged to have occurred within 300 days prior to its filing, as discussed above. Thus, plaintiff's ADEA claim, if any, would be dismissed for failure to exhaust his administrative remedies, just as his Title VII claim was.
Further, plaintiff's EEOC charge did not include a claim of age discrimination, nor is age discrimination `like or reasonably related to' the claim of race discrimination which was included in his EEOC charge. See Rodriguez v. Miller Waste Mills, Inc., 72 Fed. Appx. 839, 845-46 (10th Cir. Aug. 20, 2003), citing cases. Accordingly, any amendment to add an ADEA claim would be futile.
Vietnam Era Veterans' Readjustment Assistance Act
Plaintiff's claim invoking the Vietnam Era Veterans' Readjustment Assistance Act (VEVRA), 38 U.S.C. § 4211-4214, is not actionable because there is no private right of action under VEVRA. Suazo v. Regents of University of California, 149 F.3d 1191, 1998 WL 339714, *2 (10th Cir. June 24, 1998) (Table). Accordingly, the proposed amendment to add such a claim would prove futile.
§ 1981 claim
This court has previously held that § 1983 provides the exclusive remedy for pursuing damages against a state actor for claims arising under § 1981. Burns v. Board of Com'rs of County of Jackson, Kansas, 197 F. Supp.2d 1278, 1296 (D. Kan. 2002) (granting summary judgment on plaintiff's § 1981 claim), aff'd 330 F.3d 1275 (10th Cir. 2003). The two-year Kansas state statute of limitations for injury to the rights of another would apply to any § 1983 claim brought by plaintiff. See Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir. 2000), citing 42 U.S.C.A. § 1983; K.S.A. 60-513(a)(4). Similarly, there is a two-year statute of limitations for claims of discrimination pursuant to 42 U.S.C. § 1981. See Garcia v. University of Kansas, 702 F.2d 849, 851 (10th Cir. 1983).
Plaintiff filed this case on February 25, 2003. Because the events of which plaintiff complains are alleged to have occurred more than two years before he filed this suit, his claims, whether brought under § 1981 or 1983, would be barred by the applicable two-year statute of limitations.
The court sees no reason to believe that the plaintiff could state a federal claim over which this court could exercise jurisdiction and on which relief could be granted on these facts. The court will therefore dismiss without giving the plaintiff an opportunity to amend his complaint.
Motion to consolidate
Because defendant's motion for judgment on the pleadings will be granted, plaintiff's motion to consolidate this case with the case No. 03-2098-CM is denied as moot.
Motion to appoint counsel
Because defendant's motion for judgment on the pleadings will be granted, and his proposed amendments will not be allowed, plaintiff's motion to appoint counsel is denied as moot. The court found it unnecessary to consider the motion to appoint counsel before determining the merits of defendant's motion because the defects in plaintiff's pleadings are not of a kind which could be remedied by good lawyering.
IT IS THEREFORE ORDERED that the defendant's motion for judgment on the pleadings (Dk. 21) is granted.
IT IS FURTHER ORDERED that plaintiff's motion to amend (Dk. 24) is denied as futile.
IT IS FURTHER ORDERED that plaintiff's motion to consolidate (Dk. 29) and plaintiff's motion to appoint counsel (Dk. 23) are denied as moot.