Borsody v. Frontier Heritage Cmtys., No. 25-2168-JAR-ADM (2025)

Case details
Full caption
Borsody v. Frontier Heritage Communities
Country
United States
Jurisdiction
Kansas (KS)
Court
Kansas Supreme Court
Decided
2025
Disposition
Motion Denied
Majority
Julie A. Robinson (J.) (unanimous Court)
Borsody v. Frontier Heritage Communities, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3077548Only the Westlaw citation is currently available.United States District Court, D. Kansas.Andria BORSODY, Plaintiff,v.FRONTIER HERITAGE COMMUNITIES, Defendant.Case No. 25-2168-JAR-ADM|Signed November 4, 2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsAndria Borsody, Basehor, KS, Pro Se.Desirae Fowler Demore, Justin M. Dean, Jackson Lewis PC,Overland Park, KS, for Defendant.MEMORANDUM AND ORDERJULIE A. ROBINSON, UNITED STATES DISTRICTJUDGE*1 Plaintiff, proceeding pro se and in forma pauperis, bringsthis action against Defendant Frontier Heritage Communities(“Frontier”), alleging discrimination, retaliation, and failureto accommodate under Title VII of the Civil Rights Actof 1964 (“Title VII”) and the Americans with DisabilitiesAct (“ADA”). Before the Court are Defendant's Motion toDismiss Plaintiff's Complaint (Doc. 22) and Plaintiff's Motionfor Entry of Default and for Sanctions (Doc. 34). The motionsare fully briefed, and the Court is prepared to rule. As statedbelow, the Court grants Defendant's motion to dismiss anddenies Plaintiff's motion for entry of default and for sanctions.I. Motion to DismissA. StandardFed. R. Civ. P. 12(b)(6) provides for dismissal for failure tostate a claim upon which relief can be granted. To survive amotion to dismiss brought under Fed. R. Civ. P. 12(b)(6), acomplaint must contain factual allegations that, assumed tobe true, “raise a right to relief above the speculative level”1and include “enough facts to state a claim to relief that isplausible on its face.”2 The plausibility standard does notrequire a showing of probability that “a defendant has actedunlawfully,” but requires more than “a sheer possibility.”3“[M]ere ‘labels and conclusions,’ and ‘a formulaic recitationof the elements of a cause of action’ will not suffice; aplaintiff must offer specific factual allegations to supporteach claim.”4 The Court must accept the nonmoving party'sfactual allegations as true and may not dismiss on the groundthat it appears unlikely the allegations can be proven.5 TheCourt will view all well-pleaded factual allegations in the lightmost favorable to the plaintiff.6Because Plaintiff proceeds pro se, the Court must construe herfilings liberally and hold them to a less stringent standard thanformal pleadings drafted by attorneys.7 However, Plaintiff'spro se status does not excuse her from complying with federaland local rules.8B. BackgroundPrior to filing this lawsuit, Plaintiff dually filed a Chargeof Discrimination against “The Michaels Organization andits Representatives, whose address is 800 W. WarehouseRd., Ft. Leavenworth, KS 66027” with the Kansas HumanRights Commission (“KHRC”) and the Equal EmploymentOpportunity Commission (“EEOC”).9 The charge wasassigned No. 28D-2024-00803. It alleged discrimination andretaliation on the basis of sex and disability. The EEOC issueda right-to-sue letter for this charge to Plaintiff on January8, 2025. On March 31, 2025, within 90 days of receipt,Plaintiff filed the Complaint in this case against Frontieralleging claims of discrimination, retaliation, and failure toaccommodate under Title VII and the ADA.*2 In the Complaint, Plaintiff alleges that she filed a chargeof discrimination with the Kansas State Division of HumanRights and the EEOC in “July 2024.”10 She attached toher Complaint the right-to-sue letter.11 Defendant attachedto its motion to dismiss the administrative charge.12 TheCourt considers both documents on this motion to dismiss.The Court can consider the right-to-sue letter under Rule
Borsody v. Frontier Heritage Communities, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.210(c) because Plaintiff attached it to her Complaint. TheCourt can consider the administrative charge because Plaintiffreferences it in her Complaint, it is central to the claims in thecase, and Plaintiff does not challenge the authenticity of thedocument.13C. DiscussionTo exhaust administrative remedies, a plaintiff must filea charge of discrimination with either the EEOC or anauthorized state agency and receive a right-to-sue letter basedon that charge.14 The Court must liberally construe theadministrative charge to determine whether a particular claimhas been exhausted.15 The inquiry “is generally limitedby the scope of the administrative investigation that canreasonably be expected to follow the charge of discriminationsubmitted to the EEOC.”16 Naming a party in the EEOCcharge “is a fundamental aspect of the administrative processbecause a party cannot participate in conciliation withoutnotice.”17 Although failure to exhaust is an affirmativedefense,18 the court can decide a motion to dismiss for failureto exhaust when “the grounds for the defense appear on theface of the complaint.”19Frontier moves to dismiss for failure to exhaust becausePlaintiff's administrative charge was filed against “theMichaels Organization and its Representatives” (“Michaels”)instead of Frontier. Plaintiff responds that these entities arerelated; that she was “employed at a property managedby Frontier Heritage Communities, and her supervisors andHR contacts operated under branding and authority of TheMichaels Organization.”20 She states that they are under thesame “corporate umbrella,” thus, Frontier had notice of theadministrative charge. Frontier denies that it had notice of thecharge, and claims there is no support for Plaintiff's claim thatthe entities are substantially identical.Frontier is correct that, in general, each defendant must bespecifically named in the administrative charge.21 UnderTenth Circuit law, a defendant not named in the administrativecharge must be dismissed if it does not meet the substantial-identity test, which requires the Court to consider thefollowing four factors:(1) whether the role of the unnamedparty could through reasonable effortby the complainant be ascertained atthe time of the filing of the EEOCcomplaint; (2) whether, under thecircumstances, the interests of a namedparty are so similar as the unnamedparty's that for the purpose of obtainingvoluntary conciliation and complianceit would be unnecessary to includethe unnamed party in the EEOCproceedings; (3) whether its absencefrom the EEOC proceedings resultedin actual prejudice to the interests ofthe unnamed party; and (4) whetherthe unnamed party has in some wayrepresented to the complainant that itsrelationship with the complainant is tobe through the named party.22*3 The Cout has liberally construed the administrativecharge in this case and assumed as true the allegations in theComplaint in considering the four factors stated above. First,Plaintiff does not explain why she could not have discoveredFrontier's role through reasonable diligence when she filedthe charge. She claims in the response brief that Frontiermanaged the employer's property but that she reported tohuman resources through Michaels. Yet, she does not nameMichaels as a defendant in this matter. Plaintiff wholly failsto explain when and how she determined that Frontier and notMichaels was the proper Defendant before filing the instantaction. The Court finds that this factor weighs in favor ofFrontier.Second, the Court cannot conclude on this record thatFrontier's interests are so similar as Michaels’ that for thepurpose of obtaining voluntary conciliation and complianceit would be unnecessary to include Frontier in the EEOCproceedings. Plaintiff makes the conclusory assertion in herresponse that the parties are part of the same “corporateumbrella” but provides no allegations about this in theComplaint. Thus, this factor also weighs in favor of Frontier.Third, Plaintiff argues that Frontier's absence from the chargedid not cause it actual prejudice. But this too is a conclusoryassertion. Frontier maintains that it was not on notice of thecharge. Indeed, Plaintiff did not mention Frontier anywhere inher administrative charge. The fact that Frontier was unable toparticipate in voluntary conciliation during the administrativeprocess and did not receive prior notice of the lawsuit against
Borsody v. Frontier Heritage Communities, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3it through the EEOC charge constitutes actual prejudice. Thisfactor weighs in favor of Frontier.Fourth, there is nothing in the Complaint that would allowthe Court to infer that Michaels in some way represented toPlaintiff that its relationship with Plaintiff is to be throughFrontier, or vice versa. This final factor weighs in favor ofFrontier.For all of these reasons, the Court finds that Plaintiff failedto administratively exhaust her claims against Frontier.23Plaintiff asserts that equitable tolling applies because sherelied on EEOC guidance in “naming the entity sheunderstood to be her employer.”24 To be sure, the affirmativedefense of failure to timely file an EEOC charge issubject to equitable tolling.25Plaintiff bears the burden ofdemonstrating equitable tolling.26 It can apply when the facts“ ‘rise to the level of active deception,’ such as when ‘aplaintiff has been lulled into inaction by her past employer,state or federal agencies, or the courts.’ ”27 There are nofacts to support active deception by the EEOC that wouldgive rise to equitable tolling. Certainly, the EEOC's right-to-sue letter does not demonstrate active deception, i.e., that theEEOC lulled Plaintiff into believing she need not exhaust asto Frontier.In the response, Plaintiff requests leave to amend. While theCourt recognizes the general rule that pro se parties should beallowed leave to amend, it may appropriately dismiss a claimwithout allowing an amendment “where it is obvious that theplaintiff cannot prevail on the facts [s]he has alleged and itwould be futile to give [her] an opportunity to amend.”28“[T]he district court should allow a plaintiff an opportunityto cure technical errors or otherwise amend the complaintwhen doing so would yield a meritorious claim.”29 Plaintiff'sfailure to exhaust is not a technical error. It's an affirmativedefense. The Court finds that leave to amend in this casewould be futile because Plaintiff's deficiencies with failureto exhaust as to the correct defendant are not curable. AndPlaintiff provides no indication of how she could pleadfacts that would avoid the exhaustion defense. In sum, theCourt grants Defendant's motion to dismiss and dismisses thiscase without prejudice for failure to exhaust administrativeremedies.II. Motion for Default and for Sanctions*4 Plaintiff moves for default and for sanctions becauseFrontier has not filed an answer to the Complaint. Sherepeatedly asserts that Frontier's assertion of a proceduraldefense is somehow wrongful. She is mistaken.When a party fails to plead or otherwise defend, and that factis made to appear by affidavit or otherwise, default shouldbe entered against the party.30 A defendant must serve ananswer within 21 days after being served with the summonsand complaint or within 60 days if the defendant waivesservice.31 However, this deadline is altered if the defendantfiles a motion under Rule 12(b)(6),32 because such a motion“must be made before pleading if a responsive pleading isallowed.”33In this case, the correct summons was issued on June 23, 2025,and was returned executed on Frontier on July 7, 2025.34Frontier sought and obtained a Clerk's Order ExtendingTime to Answer or Otherwise Plead, which extended itsanswer deadline from July 28, 2025, to August 11, 2025.35On August 11, Frontier filed its motion to dismiss underRule 12(b)(6), which altered its answer deadline. It was notrequired to file an answer until 14 days after the Court deniedits motion to dismiss. And because the Court has now grantedthat motion to dismiss, Frontier need not answer at all. Thus,Plaintiff's motion for default and for sanctions must be denied.III. Admonition to PlaintiffPlaintiff proceeds pro se in this matter, but she is subject tothe same rules as attorneys who appear before this Court.36Given that Plaintiff's response contains a citation to a case thatdoes not exist,37 the Court is concerned that she relied ongenerative artificial intelligence in drafting her response brief.Plaintiff is cautioned against using artificial intelligence fordrafting legal documents or citing cases without confirmingtheir accuracy. Plaintiff is further directed to review Fed. R.Civ. P. 11, which applies to both attorneys and unrepresentedparties.IT IS THEREFORE ORDERED BY THE COURT thatPlaintiff's Motion for Entry of Default and for Sanctions (Doc.34) is denied.IT IS FURTHER ORDERED BY THE COURT thatDefendant's Motion to Dismiss Plaintiff's Complaint (Doc.22) is granted. Plaintiff's Complaint is hereby dismissed in
Borsody v. Frontier Heritage Communities, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4its entirety without prejudice. The Clerk is directed to enterjudgment in favor of Defendant.IT IS SO ORDERED.All CitationsSlip Copy, 2025 WL 3077548Footnotes1Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).2Id. at 570.3Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).4Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at 555).5Iqbal, 556 U.S. at 678.6Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm'rs of Cnty. of Arapahoe, Colo., 633 F.3d 1022, 1025 (10th Cir.2011).7Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).8Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).9Doc. 23-1.10Doc. 1 ¶¶ 4–5.11Doc. 1-1.12Doc. 23-1.13See Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253–54 (10th Cir. 2005) (“[A] documentcentral to the plaintiff's claim and referred to in the complaint may be considered in resolving a motion todismiss, at least where the document's authenticity is not in dispute.”).14See 42 U.S.C. § 2000e(5)(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).15Jones v. United Postal Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).16Delsa Brooke Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1170 (10th Cir. 2020) (quoting Smith v.Cheyenne Ret. Inv'rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018)).17Lohf v. Runyon, 999 F. Supp. 1430, 1442 (D. Kan. 1998), aff'd, 176 F.3d 488 (10th Cir. 1999).18Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018).19Cirocco v. McMahon, 768 F. App'x 854, 858 (10th Cir. 2019) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).20Doc. 24 at 1.
Borsody v. Frontier Heritage Communities, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.521Romero v. Union Pac. R.R., 615 F.2d 1303 (10th Cir. 1980).22Blackmon v. U.S.D. 259 Sch. Dist., 769 F. Supp. 2d 1267, 1272 (D. Kan. 2011) (citing Romero, 615 F.2dat 1311–12).23Even assuming that Plaintiff as a layperson could not discern the correct corporate Defendant to name at thetime she filed the charge, the other three factors weigh against her and would still convince the Court thatthese two entities are not substantially identical.24Doc. 24 at 2.25Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1183 (10th Cir. 2018). To be clear, Frontier did not challenge thetimeliness of Plaintiff's exhaustion, only its scope.26Dumas v. Proctor & Gamble Mfg. Co., 453 F. App'x 819, 821 (10th Cir. 2011).27Id. at 820 (quoting Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002)).28Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (alteration in original) (quoting Geev. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010)).29Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001).30Fed. R. Civ. P. 55(a).31Fed. R. Civ. P. 12(a)(1).32Fed. R. Civ. P. 12(a)(4).33Fed. R. Civ. P. 12(b).34Doc. 18.35Doc. 19.36See D. Kan. Rule 83.5.4(f) (“Any party appearing on his or her own behalf without an attorney is expected toread and be familiar with the Rules of Practice and Procedure of this court [and] the relevant Federal Rulesof Civil Procedure....”).37Doc. 24 at 2 (citing Alford v. City of Canon City, 2019 WL 13202842, at *3 (D. Colo. Mar. 29, 2019)). Neitherthe Court nor defense counsel could locate this citation.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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