United States District Court, W.D. Missouri, Western Division
ORDER GRANTING DEFENDANTS' MOTION TO
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
is Defendants' Motion to Dismiss. Doc. #17. For the
following reasons, Defendants' motion to dismiss is
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.
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.
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.
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.
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 ...