Cooper v. The Home Depot

WILLIE COOPER, Plaintiff,

v.THE HOME DEPOT, et. al., Defendants.

Case No. 11-1006

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: June 20, 2011

CORRECTED MEMORANDUM AND ORDER¹

Plaintiff Willie Cooper, proceeding pro se, brings this action against defendants The Home Depot, Home Depot U.S.A., Inc., Richard Gaskill, John Hutzenhbuhler, Daniel Moore and William Polzin, alleging numerous claims stemming from his termination from his former employer, Home Depot U.S.A., Inc. ("Home Depot"). This matter is before the Court on the following motions: defendants' Renewed Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (b)(5) and (b)(6) (Doc. 42); defendants' Motion to Strike Response (Doc. 48); Plaintiff's Motion for Summary Judgment (Doc. 51); Plaintiff's Motion to Stay Case (Doc. 53); and plaintiff's Motion for Sanctions (Doc. 56). For the reasons set forth in detail below, the Court grants defendants' Renewed Motion to Dismiss and denies Plaintiff's motions.

I. Procedural Background

Plaintiff filed a thirteen-count Petition in Sedgwick County, Kansas District Court asserting various causes of action against Home Depot U.S.A., Inc. ("Home Depot") and TheHome Depot, as well as individual defendants Richard Gaskill, John Hutzenbuhler and Daniel Moore (collectively referred to as "defendants"). Defendants timely removed the case and simultaneously moved to dismiss Plaintiff's Petition. In response, plaintiff filed a First Amended Complaint, abandoning certain claims and adding others, and adding William Polzin as a defendant. Defendants moved to strike Plaintiff's First Amended Complaint on both substantive and procedural grounds. On April 7, the Court entered an Order permitting Plaintiff's First Amended Complaint and denying defendants' Motion to Dismiss without prejudice to refile.² This motion followed; defendant Polzin has joined in the motion to dismiss as to the counts asserted against him.³

II. First Amended Complaint

When construing plaintiff's pro se First Amended Complaint, the Court bears in mind that pro se pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers.⁴ Thus, if a pro se Plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, [the court] should do so despite the Plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements."⁵ However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant."⁶ For that reason, the court should not "construct arguments or theories for the plaintiffin the absence of any discussion of those issues,"⁷ nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."⁸ The court need only accept as true the plaintiff's "well-pleaded factual contentions, not his conclusory allegations."⁹

This lawsuit arises out of Plaintiff's December 17, 2007 termination of employment from defendant Home Depot. Plaintiff's twenty-two page First Amended Complaint sets forth twelve counts against various defendants, specifically slander/libel/defamation; breach of implied contract; violation of public policy; misrepresentation; third party/tort interference; conspiracy to commit fraud; racial discrimination; wrongful termination; actions for neglect to prevent; failure to protect; conspiracy against rights; and violation of the Antitrust Act. The Court does not recite all of the detailed facts alleged by plaintiff, but points to the relevant facts below for the purpose of deciding the instant motions.

Plaintiff was hired to work as a Freight Associate at Home Depot Store number 2204 located in Wichita, Kansas. During his tenure at Home Depot, plaintiff made several complaints against James Taber and Daniel Moore, and supervisor Brendan Dawson. After plaintiff threatened to file a harassment and racial discrimination claim against Dawson, Moore became his supervisor. Plaintiff asserts that Moore repeatedly went to William Polzin, the head manager at Home Depot, to ask that plaintiff be terminated.

On December 7, 2007, plaintiff and Taber engaged in a verbal altercation. On December12, 2007, Polzin met with plaintiff and Taber and instructed them to keep their conversations professional. On December 14, 2007, Plaintiff's attempt to apologize to Taber resulted in another verbal altercation. As a result, plaintiff was terminated on December 17, 2007. Plaintiff states that he was informed at that time that he was terminated because he and Taber engaged in a second verbal confrontation; when Polzin was made aware that plaintiff did not engage in an altercation with Taber, Polzin informed him he was being terminated for apologizing. Home Depot did not conduct an investigation nor did Polzin question plaintiff about the incident. When plaintiff contacted Gaskill about the situation, Gaskill responded that "if you hadn't apologized, you wouldn't be in this situation wouldn't [sic] you." April Galvin, Home Depot's Human Resources officer, informed Polzin, Gaskill and Hutzenbuhler that she did not agree with the termination. Galvin informed plaintiff that Home Depot never terminated anyone for just cause during her tenure and that Home Depot always followed their employee handbook when terminating an employee. Plaintiff asserts that he was not made aware of the actual reason for his termination until March 2010, when he received a copy of the discipline notice that stated he engaged in a second verbal altercation with Taber.

III. Discussion

A. Motion to Strike

Plaintiff did not timely file a response to defendant's Motion to Dismiss and the time to do so has expired. Under D. Kan. Rule 6.1(d)(2),

Unless the court orders otherwise, the following time periods apply to the filing of responses and replies. These time periods include the additional 3-day period allowed under Fed. R. Civ. P. 6(d) and therefore, apply regardless of the method of service. . .

Responses to motions to dismiss or for summary judgment must be filed and served within 21 days. (emphasis added)

Further, under D. Kan. Rule 7.4,

Absent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.

Thus, based on the April 20, 2011 filing date of defendants' Motion to Dismiss, Plaintiff's response was due on or before May 11, 2011. While plaintiff did move for additional time on May 6, 2011, the Court denied his request for failure to comply with rule 6.1(a), without prejudice to refile.¹⁰ In that Order, the Court explained that D. Kan. Rule 6.1(a) requires that the motion contain "a statement of whether there has been prior consultation with other parties an the views of other parties regarding his request for extension of time, the date when his response was first due, and whether prior extensions have been granted."¹¹ Plaintiff did not seek defendants' concurrence for an extension of time or file a renewed motion seeking an extension. Instead, plaintiff simply filed a response on May 16, 2011, five days after the deadline imposed by D. Kan. Rule 6.1(d). If a response is not filed within that time, pursuant to D. Kan. Rule 15.1, the party must first seek leave of the Court prior to filing and must attach a copy of the proposed response. Plaintiff failed to request leave of the Court to file his response out of time and accordingly, it is stricken from the record.

As a result of Plaintiff's failure to timely respond, the Court could grant defendants' motion to dismiss without further consideration. Moreover, Plaintiff's untimely response offersno claim of excusable neglect, but instead mistakenly states that Rule 6.1(d) affords him an additional three days to respond. As the Court has explained, however, a pro se litigant is not excused from complying with the rules of the court, and is subject to the consequences of noncompliance.¹² That said, the Court will nevertheless briefly address the merits of the motion.

B. Motion to Dismiss

Defendants argue that Plaintiff's First Amended Complaint fails to state any claim upon which relief can be granted, that seven of Plaintiff's claims are barred by the applicable statute of limitation, that he has not exhausted his administrative remedies with respect to his race discrimination claim, and that he has failed to sufficiently serve process on defendants.

Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and exercise jurisdiction only when authorized to do so.¹³ Federal jurisdiction can be challenged at any time and plaintiff bears the burden of showing that the court has subject matter jurisdiction.¹⁴ A facial attack, such as this, relies on the allegations in the complaint.¹⁵ "[W]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."¹⁶ Moreover, "[i]f the court determines at any time that it lacks subject-matterjurisdiction, the court must dismiss the action."¹⁷

Plaintiff claims in Count 7 of his Complaint that Polzin stated he approved Plaintiff's transfer to a different supervisor to prevent plaintiff from filing a racial discrimination lawsuit against Dawson and Home Depot. Plaintiff states his claim is brought pursuant to the Civil Rights Act of 1964 and 1991 or, in the alternative, K.S.A. § 61-4103. Thus, the Court will analyze Plaintiff's employment discrimination claim under Title VII and the Kansas Act Against...