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Kramlich v. Yellowstone County Elementary School District #2

United States District Court, D. Montana, Billings Division

December 4, 2019

MARK KRAMLICH, Plaintiff,
v.
YELLOWSTONE COUNTY ELEMENTARY SCHOOL DISTRICT #2, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE

         I. Background

         On November 21, 2018, Plaintiff Kramlich filed this action alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. See Compl. (Doc. 2) at 1 (“Received” stamp); Id. at 3 ¶ II.

         Kramlich named Billings Public Schools as the Defendant. The proper name is Yellowstone County Elementary School District #2. See Br. in Supp. of Mot. to Dismiss (Doc. 7) at 1. To clarify the record, the proper name will be substituted for “Billings Public Schools.”

         On July 19, 2019, the Defendant School District (“the School District”) moved to dismiss the complaint for failure to state a claim on the grounds that it was untimely filed (Docs. 6, 7). Kramlich filed a brief in response (Doc. 10) along with a motion to extend his time to file his complaint (Doc. 9). The School District replied in support of its motion to dismiss (Doc. 11) and also responded to Kramlich's motion (Doc. 12).

         The Court notes that Kramlich is self-represented and is proceeding in forma pauperis. See Order (Doc. 4). “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citation omitted). Courts must briefly explain deficiencies that may be cured by amendment, see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), but if a claim cannot be cured by amendment, “the court shall dismiss” it, 28 U.S.C. § 1915(e)(2) (emphasis added); see also Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

         II. The Complaint

         Kramlich alleges:

I wrote a play in 2014. This play was accused of being about lesbians. It was not. I was told I had created controversy by making parents think about gays. Afterwards my evaluations became negative. My first write up was in May 2017 after being harassed [illegible “and”?] Then I was terminated first reason listed is I forced a student to play a lesbian against her will. This never happened.

Compl. (Doc. 2) at 4-5 ¶ III(E).

         Kramlich asserts that he filed a charge with the Equal Employment Opportunity Commission (“EEOC”) in August 2017. See Compl. at 5 ¶ IV(A). He attached to his complaint a copy of a “Dismissal and Notice of Rights” issued by the EEOC, commonly called a “notice of right to sue” or “right-to-sue letter.” The document was mailed on August 10, 2018. See Compl. Ex. (Doc. 2-2) at 1. The notice states, in part:

You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice [blot] your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.)

Compl. Ex. (Doc. 2-2) at 1 (bold text and capitalization in original).[1]

         III. Motion to Dismiss

         The School District moves to dismiss the complaint for failure to state a claim on which relief may be granted. See Fed.R.Civ.P. 12(b)(6).

         A. Governing Legal Standard

         “Dismissal under Rule 12(b)(6) is proper only when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Zixiang Li, 710 F.3d at 999 (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). A complaint may fail to state a claim because it contains a “built in” defense. See, e.g., United States v. Rogers Cartage Co., 794 F.3d 854, 860-61 (7th Cir. 2015); Jardin de las Catalinas Ltd. P'ship v. Joyner, 766 F.3d 127, 132 (1st Cir. 2014). The School District suggests this is the case with respect to the 90-day period Kramlich had to file his lawsuit after he received the EEOC's right-to-sue letter.

         B. Extrinsic Materials

         The School District attached several exhibits to its brief in support of dismissal, evidently to substantiate its recitation of the history of the parties' dispute. In his brief responding to the motion to dismiss, Kramlich disputes these documents' representation of the prior proceedings and the integrity of the proceedings. He attaches to his brief exhibits related to that portion of his argument.

         A district court may not consider material beyond the pleadings in ruling on a Rule 12(b)(6) motion without converting the motion into one for summary judgment. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The Court has not considered the exhibits either party attached to its briefs.

         The Court will, however, consider Kramlich's affidavit (Doc. 9-1), which was submitted in support of his motion for extension of time to file (Doc. 9). The affidavit substantiates the statements in Kramlich's brief (Doc. 10). Facts set out in briefs may be considered under Rule 12(b)(6), provided they are consistent with the ...


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