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Manuel Wilson v. Allied-Barton Security Services

May 3, 2011

MANUEL WILSON, PLAINTIFF,
v.
ALLIED-BARTON SECURITY SERVICES,
DEFENDANT.



ORDER AND FINDINGS & RECOMMENDATIONS

Pending before this court is defendant Allied-Barton Security Services' ("Allied-Barton's") motion to dismiss. The court has determined that the matter shall be submitted upon the record and briefs on file and, accordingly, the date for hearing of this matter shall be vacated. Local Rule 230. Upon review of the motion and the documents in support and opposition, and good cause appearing therefor, THE COURT MAKES THE FOLLOWING FINDINGS:

FACTUAL AND PROCEDURAL BACKGROUND

The allegations in the complaint are scarce. However, review of the complaint and the exhibits attached to it*fn1 reveal that plaintiff was employed at Washington University in St. Louis, Missouri through Allied-Barton. On January 22, 2008, plaintiff's employment at Allied-Barton was terminated after he took off six days from work due to an unidentified disability. Plaintiff asserts that his dismissal was because of his disability.

On March 21, 2008, plaintiff filed a complaint with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission ("the EEOC") against Washington University claiming that he was discharged from his job because of his disability. Compl. at 2.

On May 19, 2008, plaintiff filed an identical complaint against Allied-Barton. See Req. for Judicial Notice, Ex. A.

On February 18, 2009, plaintiff was mailed a Dismissal and Notice of Rights letter from the EEOC as to his complaint against Washington University. Compl. at 3-4. Therein, plaintiff was informed that the EEOC file was closed because the agency adopted the findings of the state or local fair employment practices agency that investigated plaintiff's charge.*fn2 Id. Plaintiff was also advised that, if he wished to file a lawsuit pursuant to Title VII, the Americans with Disabilities Act and/or the Age Discrimination in Employment Act, such suit must be filed within 90 days of plaintiff's receipt of the letter. Id.

On April 7, 2009, plaintiff was mailed an identical letter concerning his claim against Allied-Barton. See Req. for Judicial Notice, Ex. B.

On May 11, 2010, plaintiff filed a complaint in this court against Washington University School of Medicine and Apryle Cotton alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. See Case No. 2:10-cv-1157-LKK-KJM. That case was transferred to the Eastern District of Missouri pursuant to 28 U.S.C. § 1391(b). Id. Doc. No. 3. Upon transfer, the case was dismissed as time-barred pursuant to 42 U.S.C. § 12117(a). Req. for Judicial Notice, Ex. E.

Also on May 11, 2010, plaintiff filed the instant complaint pursuant to the ADA. Plaintiff seeks back-pay and "whatever else this court deems just and proper."

STANDARDS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory ...


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