United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATION OF U.S.
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
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.
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.”
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).
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.
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).
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
Motion to Dismiss
School District moves to dismiss the complaint for failure to
state a claim on which relief may be granted. See
Governing Legal Standard
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.
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.
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.
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 ...