Carney v. City of Shawnee, Kansas, Civil Action No. 98-2019-EEO.

24 F.Supp.2d 1185

Thomas F. CARNEY, Delbert D. Nicholas and John Wells, Plaintiffs, v. THE CITY OF SHAWNEE, KANSAS, Defendant.

Civil Action No. 98-2019-EEO.

United States District Court, D. Kansas.

October 9, 1998.

COPYRIGHT MATERIAL OMITTED

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Thomas F. Carney, Delbert D. Nicholas, John Wells, plaintiffs.

M. Ellis Rainey, II, Rainey, Byrum & Rainey, Overland Park, KS, for City of Shawnee, Kansas, defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on the following motions: Plaintiffs' Renewed Motion to Amend Their Complaint (Doc. # 29); and Defendant's Motion for Summary Judgment on Count II of the Complaint (Doc. # 4). Both motions are now ready for ruling. For the reasons set forth below, plaintiffs' motion to amend their complaint is granted, and defendant's motion for partial summary judgment is granted in part and denied in part.

I. Plaintiffs' Motion to Amend Their Complaint.

Plaintiffs have filed a motion seeking permission to amend their complaint to "clarif[y] the plaintiffs' claim for deprivation of constitutional rights under the First and Fourteenth Amendment[s] of the United States Constitution." Plaintiffs' Memorandum in Support at 1. Defendant has filed no response in opposition. Accordingly, we grant as uncontested plaintiffs' motion seeking leave to amend. D. Kan. Rule 7.4.

II. Defendant's Motion for Summary Judgment on Count II of the Complaint.

Plaintiffs are police officers for the City of Shawnee, Kansas. Plaintiffs allege in the second amended complaint that they were subjected to sexual harassment by a supervisor who made unwelcome homosexual advances. They seek relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 U.S.C. § 1983, and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq. Defendant contends it is entitled to summary judgment on Count II because: (1) plaintiffs did not file a complaint within ninety days after they received right to sue letters from the Equal Employment Opportunity Commission ("EEOC"); and (2) plaintiffs have not stated a substantive cause of action under section 1983.

A. Factual Background.

The following material facts are uncontroverted pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1.

Plaintiffs Thomas F. Carney and John Wells filed charges of retaliation and failure to promote with the EEOC. On September 3, 1997, the EEOC dismissed these charges. On January 13, 1998, plaintiffs Carney and Wells filed this action, alleging in Count II of their complaint claims of retaliation and failure to promote.¹

B. Standards for Summary Judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 477 U.S. 242.

Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D. Kan. Rule 56.1.

C. Discussion.

1. Title VII.

If the EEOC dismisses a discrimination charge, the complainant must bring suit within ninety days of receiving a right to sue letter pursuant to 42 U.S.C. § 2000e-2(a)(1). See Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1265 (10th Cir. 1996). The ninety-day rule is not jurisdictional, but rather is "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. at 1267 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). In this case, the plaintiffs do not dispute that on September 3, 1997, the EEOC sent a right to sue letter to each plaintiff. The plaintiffs, however, did not institute this action until January 13, 1998, well over ninety days after the EEOC right to sue letters were presumably received.²

In support of summary judgment on Count II of the second amended complaint, defendant argues that plaintiffs failed to bring suit within ninety days of receiving their right to sue letters. Plaintiffs contend that they received conflicting advice in communications with the EEOC, which constitutes active deception and entitles them to equitable tolling. The Tenth Circuit allows equitable tolling in a Title VII action "only if there has been `active deception'" or if the complainant has been "`lulled into inaction' in any way that rises to the active deception standard." Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1481 (10th Cir.1988).

Plaintiffs contend they are entitled to equitable tolling because their attorney was actively misled by correspondence with an EEOC investigator, Rick Thomas. On August 18, 1997, Mr. Thomas wrote a letter to plaintiffs informing them that he had finished his review of their retaliation claims. It states in pertinent part:

You will shortly receive a dismissal letter which will explain that you have 90 days from receipt of that letter to file a lawsuit in federal court if you wish to proceed further.... Be certain to provide the Right-to-Sue documents you receive to your attorney immediately upon receipt. On that note, be advised I have not yet received a notice of representation from your present attorney...

Plaintiffs' Response, Exhibit A. On September 3, 1997, the EEOC issued plaintiffs' notices of right to sue. On September 10, 1997, plaintiffs' attorney sent Mr. Thomas a letter, requesting that the right to sue letters for all charges be sent directly to him. Plaintiffs' attorney never received a copy of the right to sue letters.

There is no dispute that plaintiffs had actual notice of the ninety-day rule. As mentioned above, the August 18, 1997 letter specifically stated that plaintiffs had ninety days in which to file a civil action upon receipt of the right to sue letter and that they should give that letter to their counsel "immediately." The September 3, 1997 right to sue letter itself states: "[i]f you decide to sue, you must sue WITHIN 90 DAYS from your receipt of this Notice; otherwise your right to sue is lost." Defendant's Memorandum in Support, Exhibits B & D.

Courts have allowed equitable tolling where the right to sue letter is ambiguous. See, e.g., Martinez v. Orr, 738 F.2d 1107 (10th Cir.1984). That is not the case here, however. Each of these letters is unambiguous and makes perfectly clear that plaintiffs had only ninety days in which to bring suit on their Title VII claims. See Cottrell v. Newspaper Agency Corp., 590 F.2d 836, 839 (10th Cir.1979) ("If in fact plaintiff was subjectively misled to believe that he could ignore the ninety day period, such a response was not reasonably predictable from the face of the notice and cannot be grounds for tolling the filing period.") (citing Melendez v. Singer-Friden Corp., 529 F.2d 321 (10th Cir. 1976)).

Plaintiffs' attorney states in his affidavit that the EEOC never timely advised him of the September 3, 1997 right to sue letters, nor provided him with copies. To the extent that plaintiffs argue that this failure constitutes grounds for equitable tolling, they are mistaken. The fact that "the EEOC violated its own regulations by failing to send a copy of the right to sue letter to Mr. Biester's attorney ......