United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
matter is before the Court upon Defendant's Motion to
Dismiss [DE 5] Plaintiff's claims for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff, pro
se, has filed Response, and Defendant has filed a Reply in
further support of its motion. [DE 8 and 9.] For the reasons
stated below, Plaintiff's claims shall be dismissed.
Camuel was employed by Defendant and generally worked four to
five hours a day in the Murray Cheese Shop in one of
Defendant's stores beginning on September 4, 2015. He
worked mostly morning shifts, but he also filled in on Friday
evenings for a period of time. As time passed, he began to
experience back pain and underwent back surgeries, which
limited his availability to work. Then, things began to go
wrong. On the morning of March 10, 2017, Plaintiff opened the
cheese shop, but he avers there was a
"miscommunication" about whether he was supposed to
work in the morning or evening that day. He then had to leave
work during his scheduled shift on Tuesday, March 14, 2017,
due to his back pain. Following that, he avers that he
obtained a doctor's note limiting him to one day of work
a week, and he asked to work on Monday mornings only, from 6
a.m. to 11 a.m. His supervisor advised him that the schedule
did not have a shift that accommodated Plaintiff's
availability. Plaintiff requested the shift again, but his
request was denied. His employment was terminated at some
point after April 3, 2017.
on March 21, 2017, Plaintiff filed a charge with the EEOC
alleging disability discrimination. In his Complaint, he
avers that he received his notice of right-to-sue "on or
about July 2017." Plaintiff filed his Complaint in this
matter alleging "wrongful termination and disability
discrimination" on November 27, 2017. He attached a
notice of right-to-sue dated July 7, 2017, to his Complaint.
He also attached, but did not explain, a second right-to-sue
letter to his Complaint, which was dated August 21, 2017.
survive a motion to dismiss, a plaintiff must raise his claim
above a speculative level and demonstrate "a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
plaintiff's allegations must be sufficient to raise his
or her claims above a speculative level. Id. at 555.
Neither "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements" nor "the mere possibility of
misconduct" is sufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009). This is no less true when a
plaintiff is proceeding pro se. See Grinter v.
Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citing
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988)). In ruling on a Motion to Dismiss,
"the court may not . . . take into account additional
facts asserted in a memorandum opposing the motion to dismiss
. . . ." Johnson v. Metro Gov't of Nashville
& Davidson Cnty., 502 Fed.Appx. 523, 542 (6th Cir.
2012) (quoting Moore's Federal Practice § 12.34).
considered the matter carefully, Plaintiff's federal
discrimination claims under the Americans with Disabilities
Act are out of time. “The ADA incorporates the powers,
remedies, and procedures applicable to employment
discrimination actions under Title VII. See 42
U.S.C. § 12117. Under Title VII and, thus, under the
ADA, a plaintiff must commence his civil action within 90
days of receiving a right-to-sue letter from the EEOC.
See 42 U.S.C. § 2000e-5(f)(1).”
Garrett v. Weyerhaeuser Co., No. 98-1424, 1999 WL
777652, *1, 191 F.3d 452 (6th Cir. Sept. 17, 1999).
avers that he received his first right-to-sue letter from the
EEOC "on or about July 2017" and there is a second
right to sue letter dated August 21, 2017. (Complaint, Doc.
No. 1-1, PageID 11.) Even if the court counts the days from
the later of the two dates, August 21, and accounts for three
days of time for mailing under Federal Rule of Civil
Procedure 6, as Plaintiff urges, his Complaint was not filed
until November 27, 2017, more than 90 days later. The
ninetieth day, using his proposed calculation, was Wednesday
November 22, 2017, which was neither a weekend nor a holiday.
Thanksgiving, the holiday upon which Plaintiff relies to
extend his time did not fall until Thursday, November 23,
2017. It follows that Plaintiff's statute for limitations
for raising federal claims expired before he filed his
complaint, and those claims must be dismissed as untimely.
Garrett, 1999 WL 777652 at *1; Johnson, 502
Fed.Appx. at 542; Tiberio v. Allergy Asthma Immunology of
Rochester, 664 F.3d 35, 36-37 (2d Cir. 2011).
Plaintiff has not averred facts which would sustain a claim
for disability discrimination under the Kentucky Civil Rights
Act (“KCRA”) because he has not averred that he
was qualified for his position. Plaintiff has alleged no
facts supporting the claim that he is qualified for his job
when he can work only about 25 to 33 percent of his previous
schedule. Denczak v. Ford Motor Co., 215 Fed.Appx.
442, 445 (6th Cir. 2007) (citing 29 C.F.R. §
1630.2(n)(2)(i) (an employee who can "satisfy just 35%
of the quote comes up short in performing an essential
function of the job"). Even if the Court accepts that he
was qualified in the broadest sense, he has not averred that
he requested a reasonable accommodation that Defendant failed
to provide. See Johnson v. Cleveland City Sch.
Dist., 443 Fed.Appx. 974, 982-83 (6th Cir. 2011). He
avers only that his availability had become significantly
reduced, to Monday mornings only ("I changed my
availability in the computer, which I changed to Mondays
saying I'm available from 6am to 11am . . . .")),
and has not averred facts to support a conclusion that his
requested shift, if the Court can even assume that would
qualify as a requested accommodation, was available.
facts before the Court, the Court agrees with Defendant: The
law does not require Defendant to create a job for Plaintiff.
Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862,
870 (6th Cir. 2007) ("Generally, an ADA plaintiff bears
the initial burden of proposing an accommodation and showing
that that accommodation is objectively reasonable.")
(quotation marks and citation omitted); Coulson v. The
Goodyear Tire & Rubber Co., 31 Fed.Appx. 851, 857
(6th Cir. 2002) ("Since [the plaintiff] failed to offer
proof that there were currently available positions for which
he was qualified, he cannot prevail.").
Kentucky law does not recognize a claim for common law
wrongful discharge because the KCRA preempts any pre-existing
cause of action, Grzyb v. Evans,700 S.W.2d 399, 401
(Ky. 1985); Kroger Co. v. Buckley,113 S.W.3d 644,
646 (Ky. App. 2003) (finding KCRA preempts claim for
intentional infliction of emotional distress based on ...