Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ewigman v. Tipton

United States District Court, W.D. Missouri, Western Division

December 5, 2017




         Pending is Defendants' Motion to Dismiss. Doc. #17. For the following reasons, Defendants' motion to dismiss is granted.

         I. BACKGROUND

         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 for consideration.

         II. STANDARD

         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)). "Specific 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 "must 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.