United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE.
pending before the Court is plaintiff's Motion for
Reconsideration (Doc. # 22), plaintiff's Motion to
Appoint Counsel (Doc. # 23), plaintiff's Motion for
Recusal (Doc. # 26) and Plaintiff's Motion for
Declaratory Judgment (Doc. # 29).
filed a Motion for Leave to Proceed in Forma Pauperis on July
25, 2016. The Court granted plaintiff's Motion on October
19, 2016 and plaintiff's Complaint against Magna
International, Inc. was filed the same day. In his Complaint,
plaintiff marked that his lawsuit was based on Title VII, the
Americans with Disabilities Act and a “belief that of
which is transgenderism, retaliation.” Plaintiff
indicated that the conduct in the lawsuit involved
termination of his employment, failure to accommodate his
disability, terms and conditions of his employment were
different from similar employees, retaliation and harassment.
Plaintiff also stated that he was constructively terminated
in fear of harassment, repetition. In response to the
question in the Employment Discrimination Complaint form
which asked him to explain why he believes he was terminated,
plaintiff checked the boxes for: religion, gender, disability
and other - belief that of which is transgenderism. Defendant
moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss
plaintiff's Complaint as untimely filed and because he
failed to exhaust his administrative remedies. After
reviewing the charge of discrimination, the notice of right
to sue letters from the EEOC and the Missouri Commission on
Human Rights and plaintiff's Complaint, the Court found
that plaintiff's Complaint was untimely filed. The Court
also found that plaintiff failed to exhaust his
administrative remedies regarding his ADA or his retaliation
claims. The Court granted defendant's Motion to Dismiss
and dismissed plaintiff's Complaint on June 30, 2017.
Plaintiff then filed the Motion for Reconsideration, Motion
for Appointment of Counsel, Motion for Recusal and Motion for
Federal Rules of Civil Procedure do not include a
‘motion to reconsider.'” Keys v. Wyeth,
Inc., No. C08-1023, 2009 WL 1010064 at *1 (N.D.Iowa Apr.
14, 2009). In Fesenmeyer v. City of Kansas City,
Missouri, No. 15-00850-CV-W-DGK, 2016 WL 3920450
(W.D.Mo. July 15, 2016), the Court stated:
Rule 60(b) applies to final judgments or orders and may be
used to reconsider a final order on certain enumerated
grounds such as excusable neglect, fraud, newly discovered
evidence, or any other reason that justifies relief.
Fed.R.Civ.P. 60(b) . . .A party moving for reconsideration
pursuant to any portion of Rule 60(b) must establish
exceptional circumstances to obtain the extraordinary relief
the rule provides. . . .A district court has wide discretion
in deciding whether to grant a Rule 60(b) motion, but the
Eighth Circuit has cautioned that exceptional circumstances
are not present every time a party is subject to potentially
unfavorable consequences as a result of an adverse judgment
properly arrived at.
Id. at *1 (internal citations and quotations
Motion for Reconsideration
Motion for Reconsideration, plaintiff states that he seeks to
have his case reopened due to misleading and false and
inaccurate allegations and failure to review preserved data.
Plaintiff states that defendants stated that he only marked
the box for race discrimination, which is false. He also
states that the defendants stated that he checked the boxes
for religion, gender, disability and other - belief that of
which is transgenderism. Plaintiff then also states that with
regard to his pleadings being untimely, he received a dual
filed notice of right to sue from the EEOC dated April 25,
2016 and he filed his Compliant at the United States District
Court on July 25, 2016, but had it notarized on July 22,
would appear that plaintiff is attempting to proceed pursuant
to Fed.R.Civ.P. 60(b)(1) which allows relief from an order
due to (1) mistake, inadvertence, surprise or excusable
neglect. However, after reviewing the Order dismissing
plaintiff's Complaint, there were no mistakes which would
warrant relief from the Order. Plaintiff argues first that
the defendants stated that he only check marked the box for
race discrimination and that this “is false, not true
and will not be found as evidence.” However, the Court
found in the June 30, 2017 Order that plaintiff check marked
the boxes for religion, gender, disability and other - belief
that of which is transgenderism. (June 30, 2017 Order, p. 3).
Plaintiff then argues that the defendants said that he check
marked the boxes for religion, gender, disability and
transgenderism, but “these accusations will not be
found.” However, as noted above, those were the boxes
which plaintiff check - marked on his form.
also argues that his Complaint was timely filed because he
received his Notice of Right to Sue from the EEOC on April
25, 2016 and he filed his Complaint with this Court on July
25, 2016 and the Complaint was notarized on July 22, 2016.
However, as the Court explained in the June 30, 2017 Order,
plaintiff received a Notice of Right to Sue letter from the
EEOC on April 15, 2016 (Doc. 10-2). Plaintiff
received his Missouri Commission on Human Rights Notice of
Right to Sue letter ten days later on April 25, 2016 (Doc.
5-2). The Court noted that the law presumes that a letter is
received three days after it is mailed. Thus, plaintiff was
presumed to have received the EEOC's letter by April 18,
2016 and was required to file his Complaint in federal Court
within ninety days or by Monday July 18, 2016. However,
plaintiff did not file his Complaint with this Court until
July 25, 2016, which was seven days later.
v. Rescare Homecare, No. 4:13-CV-00898-SPM, 2013 WL
5966050 (E.D.Mo. Nov. 8, 2013), is a case with a similar
timeline to the instant action. The plaintiff in that case
also received her Missouri Commission on Human Rights Notice
of Right to Sue letter after she had received her EEOC Notice
of Right to Sue. Plaintiff filed her complaint in federal
court within ninety days of receiving the MCHR Notice, but it
was 104 days after she received her EEOC charge. The Court in
that case found that despite plaintiff's mistaken belief
as to when the deadline was for filing her federal claims,
the notice from the EEOC clearly provided plaintiff with
notice of the deadline for asserting her federal claims.
Because plaintiff's ...