Clay v. United Parcel Service
Filing
31
MEMORANDUM AND ORDER granting in part and denying in part 26 Motion to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 10/24/2013. Mailed to pro se party Daniel Wayne Clay by regular & certified mail; Certified Tracking Number: 7010 2780 0003 1927 0667. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANIEL WAYNE CLAY,
Plaintiff,
v.
No. 13-2240-SAC
UNITED PARCEL SERVICE, INC.,
Defendant.
MEMORANDUM AND ORDER
This employment discrimination case comes before the Court on
Defendant’s motion to dismiss Plaintiff’s amended complaint for failure to
state a claim and for lack of jurisdiction. Plaintiff, acting pro so, opposes the
motion.
I. Motion to Dismiss Standards
“The court's function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess
whether the plaintiff's ... complaint alone is legally sufficient to state a claim
for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th
Cir. 1991). The court accepts all well-pled factual allegations as true and
views these allegations in the light most favorable to the nonmoving party.
United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied,
130 S.Ct. 1142 (2010). The court, however, is not under a duty to accept
legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868, 884 (2009). “Thus, mere ‘labels and conclusions'
and ‘formulaic recitation of the elements of a cause of action’ will not
suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 2012 WL 364058, at *2
(10th Cir. Feb. 6, 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
The Supreme Court recently clarified the requirement of facial
plausibility:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim for relief that is
plausible on its face.” Id. [Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)) at 570. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the Defendant is liable for the misconduct alleged. Id. at
556. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
Defendant has acted unlawfully. Id. Where a complaint pleads facts
that are “merely consistent with” a Defendant's liability, it “stops short
of the line between possibility and plausibility of ‘entitlement to relief.’“
Id. at 557.
Iqbal, 129 S.Ct. at 1949. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
“[C]ourts should look to the specific allegations in the complaint to
determine whether they plausibly support a legal claim for relief.” Alvarado
v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 (10th Cir. 2007). “While the
12(b)(6) standard does not require that Plaintiff establish a prima facie case
in [his] complaint, the elements of each alleged cause of action help to
2
determine whether Plaintiff has set forth a plausible claim.” Khalik, 2012 WL
364058, at *3 (citations omitted).
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nonetheless, a pro se litigant's “conclusory
allegations without supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The court “will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal theory on a plaintiff's
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
Matters Outside the Pleading
In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to
assessing the legal sufficiency of the allegations contained within the four
corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th
Cir. 2008). But in considering the complaint in its entirety, the Court also
examines documents “incorporated into the complaint by reference,” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and
documents attached to the complaint, Rosenfield v. HSBC Bank, USA, 681
F.3d 1172, 1189 (10th Cir. 2012) (quotations and citations omitted). Plaintiff
has attached a number of documents to his Amended Complaint, including
his original complaint, grievance forms, his EEOC charge and notice of right
3
to sue, and various notes. In deciding this motion, the Court considers all
attachments to be part of the complaint. See Rosenfield, 681 F.3d at 1189.
II. Facts
Neither party has set forth a coherent chronology of the crucial events
during Plaintiff’s employment which give rise to this case. Accordingly, the
court merely offers a summary gleaned from the pleadings. Defendant
initially hired Plaintiff in January of 2004 as a utility worker, and Plaintiff
stayed in that position throughout his employment. Defendant discharged
and reinstated Plaintiff one or more times before finally discharging Plaintiff
on March 12, 2013 for the stated reason that he violated Defendant’s
Workplace Violence policy. Defendant found that Plaintiff had a verbal
altercation and threated a coworker in the employee parking lot on March 8,
2013, so discharged Plaintiff pursuant to Article 17(i) of Defendant’s
Supplemental Agreement with the Central Region of Teamsters. That article
generally prohibits Defendant from discharging an employee without first
issuing a warning letter and providing a hearing, subject to certain
enumerated exceptions and to subsection (i) - a catch-all exception for
“other serious offenses.”
4
The Court takes judicial notice1 of the facts included in the following
interpretation of 17(i) by Shawnee County Judge Hendricks, who examined it
when Plaintiff sought unemployment benefits after Defendant discharged
him in September of 2012 pursuant to that subsection.
Article 17 of the Supplemental Agreement is designed to ensure
that employees are not discharged before receiving “a warning letter
of a complaint.” Article 17 also sets out several exceptions to this
general provision, which include specific conduct that is so severe and
offensive that an immediate discharge is appropriate. Some of these
exceptions include taking money from the company, consuming
alcohol or narcotics during the workday, and gross negligence resulting
in a serious accident. Therefore, the catch-all exception listed in
subsection (i) of Article 17, “other serious offenses,” which is cited to
as the reason for Mr. Clay’s discharge, refers to other conduct so
severe that to merely issue a warning would not be sufficient to ensure
the safety of the company’s employees and business operations.
Clay v. Kansas Employment Sec. Bd. of Review, Dk. 28, p. 17.
Plaintiff filed an EEOC charge the day after his March 12, 2013
termination, complaining of race discrimination, sex discrimination, and
retaliation, and the EEOC swiftly noticed Plaintiff of his right to sue. Plaintiff
timely filed this lawsuit. His amended complaint seeks damages and an
injunction for Defendant’s alleged violation of Title VII, 42 USC § 1981, and
Kansas state law. Plaintiff alleges Defendant discriminated against him based
on his race (African American) and sex and retaliated against him by
terminating his employment because of his complaints about discrimination.
1
A court may take judicial notice of facts which are a matter of public record, Tal v. Hogan,
453 F.3d 1244, 1264 n. 24 (10th Cir. 2006), and of state court documents. Pace v.
Swerdlow, 519 F.3d 1067, 1072–73 (10th Cir. 2008). Additionally, this state court
document relates to these parties and is attached to Plaintiff’s response to Defendant’s
present motion. See Dk. 28, p. 13-20.
5
III. Exhaustion of Administrative Remedies
“Exhaustion of administrative remedies is a jurisdictional prerequisite
to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.
1996) (internal quotation marks omitted). The Plaintiff bears the burden to
establish the court's subject-matter jurisdiction. See Southway v. Cent. Bank
of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003). “A plaintiff's claim in
federal court is generally limited by the scope of the administrative
investigation that can reasonably be expected to follow the charge of
discrimination submitted to the EEOC.” Jones v. U.P.S., Inc., 502 F.3d 1176,
1186 (10th Cir. 2007), quoting MacKenzie v. City and County of Denver,
414 F.3d 1266, 1274 (10th Cir. 2005). Thus, to exhaust administrative
remedies, “the charge must contain facts concerning the discriminatory and
retaliatory actions underlying each claim[, because] each discrete incident of
alleged discrimination or retaliation constitutes its own unlawful employment
practice for which administrative remedies must be exhausted.” Manning v.
Blue Cross and Blue Shield of Kansas City, 522 Fed.Appx. 438 (10th Cir.
2013), quoting Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007)
(internal quotation marks omitted). The Court liberally construes charges
filed with the EEOC in determining whether administrative remedies have
been exhausted as to a particular claim. Jones, 502 F.3d at 1186.
The Court has an independent duty to examine whether it has subject
matter jurisdiction, and such jurisdiction is lacking when a Title VII plaintiff
6
has not exhausted administrative remedies. Manning, 522 Fed. Appx. at
441. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.
2005) (holding that exhaustion of administrative remedies is a jurisdictional
prerequisite to suit under the ADEA and Title VII).
EEOC Charge
Plaintiff’s EEOC charge alleges retaliation, and discrimination based on
race and sex. Its narrative section states only the following:
I was employed January 12, 2004, through March 12, 2013,
working as a Utility Worker.
Since my return to work on January 21, 2013, I have been
subjected to racial discrimination based on comments made to me or
that I have heard. I also made complaints against my supervisor for a
writes (sic) he issued to me for insubordination.
I was sexually harassed in September of 2012, by a coworker
when I was pulling a trailer into the bay. He made a comment about
his “Dick” being long and I reported it to Management. Management
took no action based on my complaint.
On March 12, 2013, I was discharged for a violation of the Code
of Conduct “Workplace Violence.”
I was subjected to sexual harassment, racial comments and
discharged in retaliation for my previous complaints of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Amended Complaint, Dk. 24, p.46. This latter sentence is wholly conclusory
and adds no factual basis to the charge.
IV. Federal Claims
Plaintiff brings various federal claims under Title VII and 42 USC §
1981.
7
A. Racial Termination
1. Title VII
The sole allegation in Plaintiff’s EEOC charge relevant to termination is
that on a specific date, Plaintiff “was discharged for a violation of the Code of
Conduct “Workplace Violence.” Even if one liberally construes this language
to refer to the given reason for Plaintiff’s discharge instead of to the agreed
reason for it, no facts included in Plaintiff’s EEOC charge would reasonably
lead the EEOC to investigate a claim of race-based termination. This Court
therefore lacks jurisdiction over Plaintiff’s Title VII termination claim.
2. § 1981
Section 1981 contains no exhaustion requirement, and applies to
claims of racial termination. The Court thus examines Defendant’s contention
that the complaint fails to state a claim. Although the 12(b)(6) standard
does not require that Plaintiff establish a prima facie case in his complaint,
examining the complaint in light of the elements of each alleged cause of
action helps the Court determine whether Plaintiff has set forth a plausible
claim. Khalik, 671 F.3d at 1192.
In racial discrimination suits brought under § 1981 or Title VII, the
elements of a plaintiff's case are the same, based on the disparate treatment
elements outlined in McDonnell Douglas. Drake v. City of Fort Collins, 927
F.2d 1156, 1162 (10th Cir. 1991). To make a prima facie case of racial
termination absent direct evidence, a plaintiff must generally demonstrate:
8
(1) he was a member of a protected class; (2) he was qualified and
satisfactorily performing his job; and (3) he was terminated under
circumstances giving rise to an inference of discrimination. Barlow v. C.R.
England, Inc., 703 F.3d 497, 505 (10th Cir. 2012). An inference of
discrimination may be shown in various ways, including “actions or remarks
made by decisionmakers,” “preferential treatment given to employees
outside the protected class,” or “the timing or sequence of events leading to
plaintiff's termination.” Plotke v. White, 405 F.3d 1092, 1101 (10th Cir.
2005).
Defendant alleges that the amended complaint fails to include any
facts supporting a claim of racial termination. But the Court reads the
amended complaint to allege that he was terminated in 2013 because of a
verbal altercation with a white co-worker but that co-worker was not
terminated, that the workplace violence policy or Article 17(i) was applied
more stringently to him than to persons of other races, and that the
altercation leading to his termination occurred in the parking lot. Dk. 24, p.
29. This latter fact is relevant because Plaintiff had earlier complained that
he considered a confederate flag license plate on an employee’s car in the
parking lot to be racist, but management responded by saying Defendant’s
authority to discipline did not extend to the parking lot. These and other
assertions in the amended complaint are sufficient, when read in the light
9
most favorable to the Plaintiff, to state a facially plausible claim of racial
termination under § 1981.
Defendant contends that Plaintiff has not shown that the white
employee involved in the verbal altercation which led to Plaintiff’s
termination was similarly situated to the Plaintiff, but that issue is more
appropriately addressed in this case at the summary judgment stage.
B. Failure to Promote
1. Title VII
Defendant notes that Plaintiff’s failure to promote claim was not
included in Plaintiff’s EEOC charge, so contends that it fails to meet the
administrative exhaustion requirement of Title VII. The Court agrees.
Nothing in Plaintiff’s EEOC charge would reasonably have triggered an EEOC
investigation of Plaintiff’s failure to promote claim. This Title VII claim is thus
dismissed for lack of jurisdiction.
2. § 1981
Failure to promote claims are actionable under § 1981 only when the
promotion would have resulted in a “new and distinct relation between the
employee and the employer.” Patterson, 491 U.S. at 185, 109 S.Ct. at 2377.
Defendant does not contend that Plaintiff’s failure to promote claim is not
actionable, but alleges that Plaintiff’s claim of racial failure to promote is
wholly conclusory and without factual basis.
10
But the Amended Complaint does include some facts relative to this
claim. A grievance alleges that on or about August 8, 2006, Mr. Ables took
Plaintiff out of training without having given him 120 days to qualify, in
violation of an alleged provision that utility employees shall have a 120-day
training program to qualify as a “trailer repair person.” Dk. 24, p. 38.
Plaintiff argues in his brief that Mr. Ables conditioned Plaintiff’s continued
employment as a utility employee on Plaintiff’s agreement never to train as
a repairman, and this allegedly precluded Plaintiff’s subsequent chances for
promotion. Dk. 28, p. 11.
This failure-to-promote claim about events occurring in 2006 raises
the issue of timeliness. Section 1981 does not provide a specific statute of
limitations, but cases hold that either a two-year or a four-year limitations
applies. See Brown v. Unified Sch. Dist. No. 501, 465 F.3d 1184, 1188 (10th
Cir. 2006) (holding two-year statute of limitations for personal injury actions
in K.S.A. § 60–513(a) applies to civil rights claims under 42 U.S.C. § 1981).
[C]laims under § 1981 relying upon discrimination in contract
formation, which were actionable prior to the 1991 amendment, would
be governed by residual state statutes of limitations.... Claims relying
upon an employer's post-formation conduct, however, would be
subject to the four-year statute of limitations under § 1658, because
they were made possible by the 1991 amendment.
Cross v. Home Depot, 390 F.3d 1283, 1288 (10th Cir. 2004) (citing
Patterson v. McLean Credit Union, 491 U.S. 164, 177–78, 109 S.Ct. 2363,
105 L.Ed.2d 132 (1989)). Plaintiff’s lawsuit was filed in 2013, far beyond
even a four-year statute of limitations, so is untimely.
11
Even if one assumes that the negative effects of the 2006 event
continued through the date of his 2013 termination, Plaintiff’s claim is not
rendered timely because the continuing violation theory does not apply to §
1981 claims. Harris v. Allstate Ins. Co., 300 F.3d 1183, 1193 n. 2 (10th Cir.
2002), citing Thomas v. Denny's, Inc., 111 F.3d 1506, 1514 (10th Cir.),
cert. denied, 522 U.S. 1028 (1997). Plaintiff’s § 1981 claim for failure to
promote shall therefore be dismissed as untimely.
But even if the merits of this claim were properly before the Court, no
facially plausible claim is stated. To establish a prima facie case for failure to
promote, the plaintiff must demonstrate (1) he was a member of a protected
class; (2) he applied for and was qualified for the position; (3) despite being
qualified he was rejected; and (4) after he was rejected, the position was
filled by someone outside the protected class. MacKenzie v. City and County
of Denver, 414 F.3d 1266, 1278 (10th Cir. 2005). Plaintiff’s pleading fails to
allege that Abel’s decision was based on Plaintiff’s race or other protected
class and creates no inference of illegal failure to promote.
C. Disparate Impact
Plaintiff’s brief alleges that the members of the grievance board are all
white employees of the labor department, that the grievance process
negatively impacts minority employees because African-American employees
prevail less often than do Caucasian employees, and that the process for
selection of members of the grievance board is discriminatory.
12
1. Title VII
Plaintiff’s EEOC charge never mentions this claim or lays out any
factual predicate for any claim of disparate impact. Accordingly, this court
lacks jurisdiction to entertain this Title VII claim. See Leo v. Garmin Intern.,
Inc., 431 Fed.Appx. 702 (10th Cir. 2011) (affirming dismissal of disparate
impact claim for failure to exhaust; finding amendment to restate claims for
disparate impact would be futile).
2. § 1981
Section 1981 requires purposeful discrimination so does not apply to
disparate impact claims that do not raise a presumption of such a
discriminatory purpose. Drake v. City of Fort Collins, 927 F.2d 1156, 1162
(10th Cir. 1991). See New Mexico ex rel. Candelaria v. City of Albuquerque,
768 F.2d 1207, 1209 (10th Cir. 1985). Plaintiff’s disparate impact claim
about the selection and composition of the grievance board raises no such
presumption, so is not actionable under § 1981. This claim must be
dismissed.
D. Hostile Work Environment
1. Title VII
The Court liberally construes the EEOC charge to adequately include a
claim for hostile work environment based on sex and race. See Hunt v.
Riverside Transp., Inc., __ Fed.Appx.__, 2013 WL 4750764 (10th Cir. 2013).
Although the details in the EEOC charge are scant, they are arguably
13
sufficient to put the EEOC on notice that Plaintiff intended to state a claim of
prohibited racial harassment, warranting its investigation of such a claim.
2. Title VII/1981
Racial harassment is actionable under § 1981 after the 1991 revisions
to that statute. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct.
1836 (2004). Sexual harassment is actionable under Title VII but not under
§ 1981.2 Runyon v. McCrary, 427 U.S. 160, 96 S .Ct. 2586 (1976).
Title VII and § 1981 proscribe employment practices that “permeate
the workplace with ‘discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.’ ” Tademy v.
Union Pacific Corp., 520 F.3d 1149, 1156 (10th Cir. 2008) (internal citation
and quotation omitted). The plaintiff must demonstrate that the work
environment was objectively and subjectively offensive, but need “not
demonstrate psychological harm, nor ... show that her work suffered as a
result of the harassment.” Walker v. United Parcel Serv. of Am., 76
Fed.Appx. 881, 885 (10th Cir. 2003). The Court examines all the
circumstances in determining if an environment is objectively hostile,
including “the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and
2
42 USC § 1981 provides in part: “All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts … as is
enjoyed by white citizens …”
14
whether it unreasonably interferes with an employee's work performance.”
Faragher v. City of Boca Raton, 524 U.S. at 787–88, 118 S.Ct. 2275
(quoting Harris v. Forklift Systems, Inc., 510 U.S. at 21, 114 S.Ct. 367)
(internal citations and quotations omitted).
“Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment-an environment that a
reasonable person would find hostile or abusive-is beyond Title VII's
purview.” Harris, 510 U.S. at 21. Similarly, harassment that is not racial or
does not stem from animus based on a protected class is not prohibited. See
Chavez v. New Mexico, 397 F.3d 826, 831–32 (10th Cir. 2005). Thus Title
VII provides no remedy for boorish behavior or bad taste. Duncan v.
Manager, Dept. of Safety, City & County of Denver, 397 F.3d 1300, 1313-14
(10th Cir. 2005). So incidents spread out over many years which indicate
mostly poor taste and lack of professionalism usually do not rise to the level
of a hostile work environment. See, e.g., Penry v. Federal Home Loan Bank
of Topeka, 155 F.3d 1257, 1263 (10th Cir. 1998).
Plaintiff’s amended complaint recites the following: 1) a coworker
referred to the his own genitalia in September of 2012; 2) Plaintiff often
overheard racial slurs on the radio; 3) a coworker told him a joke that used
racially offensive terms; 4) Plaintiff complained about a coworker’s
confederate flag license plate but management told Plaintiff he could put a
black panther sticker on his own car and did not ask the coworker to remove
15
his license plate; and 5) management said Plaintiff was a sick person during
the grievance hearing about the license plate.3
In determining the pervasiveness of the harassment, the court may
aggregate evidence of racial hostility with evidence of sexual hostility. Hicks
v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987). Further, the
Court considers not only specific hostility targeting Plaintiff, but also the
general work atmosphere. McCowan v. All Star Maintenance, Inc., 273 F.3d
917, 925 (10th Cir. 2001). In light of the law, the Court finds that although
none of the alleged acts is severe, the complaint is sufficient in its
allegations of arguably pervasive conduct to state a plausible claim for racial,
but not for sexual, harassment.
Defendant additionally contends that no basis for employer liability has
been established and that it acted in “good faith” in responding to Plaintiff’s
complaints about the license plate. But the Court cannot decide an issue of
“good faith” on the scant facts presented by the parties on this motion. And
Plaintiff alleges he complained to his supervisor, and Defendant concedes its
knowledge of the license plate complaint, making employer liability facially
plausible.
3
Contrary to Plaintiff’s belief, none of these statements constitutes direct evidence of racial
discrimination. “Direct evidence is evidence which, if believed, resolves a matter in issue.”
United States v. Cardinas Garcia, 596 F.3d 788, 796-97 (10th Cir. 2010). Direct evidence
must “show a specific link between the alleged discriminatory animus and the challenged
decision.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343 (2009).
16
E. Retaliation
Plaintiff alleges in his amended complaint that he was terminated
because of his previous complaints about racial discrimination. Dk. 24, p. 29.
His 2013 EEOC charge alleges he was “discharged in retaliation for [his]
previous complaints of discrimination in violation of Title VII.” Dk. 24, p. 46.
Some of Plaintiff’s previous complaints are included in an EEOC charge
Plaintiff filed on April 2, 2011, attached to his amended complaint. That
charge alleges racial harassment, racial discharge, and retaliation for
complaining about racial discrimination. Dk. 24, p. 47.
1. Title VII
Plaintiff’s EEOC charge is wholly conclusory in its explanation of
retaliatory termination, alleging solely that Plaintiff was “discharged in
retaliation for [his] previous complaints of discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended.” No facts are offered which
would make such a claim plausible. Accordingly, Plaintiff’s Title VII claim is
dismissed for Plaintiff’s failure to exhaust his administrative remedies.
2. § 1981
Section 1981 encompasses employment-related retaliation claims.
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 128 S.Ct. 1951 (2008). Thus
retaliation for complaints of race discrimination is prohibited under § 1981.
The test for establishing a prima facie case for retaliation is the same under
Title VII as under 42 U.S.C. § 1981. Argo v. Blue Cross & Blue Shield of
17
Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). To establish a prima facie
case of retaliation, a plaintiff must show that: (1) he engaged in protected
opposition to discrimination; (2) a reasonable employee would have found
the challenged action materially adverse; and (3) a causal connection
existed between the protected activity and the materially adverse action.
The Court finds it unnecessary at this point to determine what causal
standard applies to § 1981 retaliation claims. See generally University of
Texas Southwestern Medical Center v. Nassar, __ US __, 133 S.Ct.
2517 (2013) (holding Title VII status-based discrimination claims require
only that one’s protected status be a motivating factor in the employer’s
decision, but Title VII retaliation claims must be proved according to
traditional principles of but-for causation). Although § 1981 claims generally
apply the same prima facie tests as do Title VII, see Drake, 927 F.2d at
1162, the Nassar majority in reaching its causation ruling found § 1981’s
retaliation provision significantly different from Title VII’s retaliation
provision. See Nassar, 133 S.Ct. at 2529-32 (alluding to § 1981 as a
“broadly worded” and” undifferentiated” antidiscrimination statute, unlike
Title VII’s detailed statutory scheme; implying that motivating-factor
causation may remain appropriate for § 1981 retaliation claims.)
Defendant contends that Plaintiff’s complaint fails to allege who
terminated Plaintiff and whether that person knew of plaintiff’s reports of
discrimination. In his response brief, Plaintiff states the following:
18
Plaintiff did demonstrate a relationship between the person who
Plaintiff complained against and person who terminated Plaintiff.
Management at trailer shop where Plaintiff works is is one team, 3
managers. Plaintiff deals have Defendant Francis, Leone, Johnson, and
Snell all complete the team of management at Plaintiffs place of
employment. Plaintiff complained to Francis about sexual harassment
on 09/06/2012, Plaintiff was terminated. Plaintiff came back to work
on 01/21/2013, Plaintiff came to Defendant Francis again about Sexual
Harassment complaint, On 01/21/2013 Plaintiff was written up by
Defendant Francis for insubordination, the charge was later thrown out
at local hearing. Plaintiff was terminated by Defendant Francis on
03/12/2013; Plaintiffs termination was retaliation, by Defendant
Francis.
Dk. 28, p. 11 (reproduced verbatim).
Although the dates of the events are not clear, this response alleges
that manager Francis terminated Plaintiff in close proximity to and in
retaliation for Plaintiff’s complaints about sex discrimination (harassment).
But sex discrimination is not protected under § 1981, see Runyon,, 427 U.S.
160, and none of this factual detail is provided in Plaintiff’s Amended
Complaint. Thus Plaintiff’s complaint fails to state a plausible claim of
retaliation under § 1981 and any amendment would be futile.
V. State Law Claims
Liberally read, Plaintiff’s amended complaint appears to include state
law claims for wrongful termination, breach of contract, negligent
supervision, and intentional interference with a contract. Defendant contends
that each of these claims is preempted by § 301 of the Labor Management
Relations Act, 29 U.S.C. § 185, because determining Plaintiff’s claims
requires interpretation of a Collective Bargaining Act. See Garley v. Sandia
19
Corp., 236 F.3d 1200, 1209 (10th Cir. 2001) (noting that § 301 preempts
state law claims when the court must interpret the CBA).
A. § 301 LMRA Preemption
Section 301 of the LMRA provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce as defined in this chapter, or between any such labor
organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount
in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). This section governs claims founded directly on rights
created by collective-bargaining agreements, and also claims “substantially
dependent on analysis of a collective bargaining agreement.” Electrical
Workers v. Hechler, 481 U.S. 851, 859, 107 S.Ct. 2161, 95 L.Ed.2d 791
(1987)). Thus a state law claim is preempted by federal law “when
resolution of [that] claim is substantially dependent upon analysis of the
terms of an agreement made between the parties in a labor contract.” Allis–
Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d
206 (1985). A claim will also be preempted if it is “inextricably intertwined
with consideration of the term of the labor contract.” Lueck, 471 U.S. at 213.
In other words, contract interpretation, and therefore, Section 301
preemption occurs where “the right asserted” is “derive[d] from the
contract.” (Id. at 218).
20
B. Wrongful Termination
Plaintiff alleges that Defendant wrongfully terminated him by using the
“catch all” exception to the standard process. Dk. 24, p. 8. Plaintiff contends
that this exception applies only to conduct which is so serious as to require
immediate termination to protect Defendant’s business or employees.
Because Defendant waited from the 8th to the 12th to terminate him, his
conduct did not fit this mold.
Examining what Plaintiff’s circumstances were, whether 17(i) was
properly applied to Plaintiff’s circumstances, and how 17(i) had been applied
to others in the past would involve interpreting the CBA. This state law claim
is therefore preempted by the LMRA.
C. Breach of Contract
Plaintiff additionally alleges that Defendant breached its agreements to
provide a fair, impartial and unbiased grievance process to discharged
employees, to terminate employees only for cause, to have a union steward
present during investigations, and to give written notice to the union before
discharging an employee. Dk. 24, p. 16-18. The alleged source of each of
these duties is the CBA. Because these state-law claims cannot be resolved
without interpreting the agreement itself, they are preempted by the LMRA.
D. Agreement to Provide a Harassment-free Workplace
Plaintiff also alleges that Defendant breached its agreement to provide
a harassment-free workplace. The source of that alleged agreement is not
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the CBA, but Defendant’s Professional Conduct and Anti-Harassment Policy,
which Plaintiff signed upon of his initial employment with Defendant. This
claim is unrelated to the CBA so is not preempted by it. Nor is this claim
preempted by Title VII, even if this claim is based on the same facts as
Plaintiff’s harassment claim under Title VII. See Visor v. Sprint/United
Management Co., 965 F.Supp. 31 (D.Colo. 1997).
Nonetheless, this claim is precluded by the alternative remedies
doctrine. “The general rule is that when the reasons pled for an employee's
termination violate federal public policy, no state cause of action is pled.”
Adair v. Beech Aircraft Corp., 1991 WL 97610, 22 n. 8 (D.Kan. 1991); See
Morriss v. Coleman Co., Inc., 241 Kan. 501, 512–13 (1987) (citing Murphy
v. City of Topeka, 6 Kan.App.2d 488 (1981)). See also Smitley v. Cigna
Corp., 640 F.Supp. 397, 401 (D.Kan.1986).
The alternative remedies doctrine at issue here, referenced
sometimes as preclusion, is a substitution of law concept. Under the
alternative remedies doctrine, a state or federal statute would be
substituted for a state retaliation claim if the substituted statute
provides an adequate alternative remedy.
Flenker v. Willamette Industries, Inc., 266 Kan. 198, 202–03 (1998). Thus
where a state or federal statute provides an adequate alternative remedy,
state common law claims based on the same prohibited acts are precluded.
See Polson v. Davis, 895 F.2d 705, 709 (10th Cir. 1990); Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1399 (10th Cir. 1997).
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Plaintiff’s claim that Defendant breached its agreement to provide a
harassment-free workplace is premised on the same underlying facts that
form the basis of his harassment claims under Title VII and § 1981. In
Flenker, the Kansas Supreme Court explicitly referenced Title VII as an
adequate statutory scheme. 967 P.2d at 303. Similarly, the Tenth Circuit has
held that the KAAD “provides an adequate and exclusive state remedy for
violations of the public policy enunciated therein.” Polson, 895 F.2d at 709–
10. The Court finds that Title VII and the KAAD provide plaintiff an adequate
substitute for this state common law remedy. See Daniels v. United Parcel
Service, Inc., 797 F.Supp.2d 1163, 1196–97 (D.Kan. 2011) (finding implied
contract claim barred because it was based on the same retaliation alleged
under Title VII, the ADEA, the KAAD, and the KADEA, which all provided an
adequate remedy). Accordingly, this state-law claim for breach of contract is
precluded.
But even if the Court were to reach the merits of this claim, it would
find the Amended Complaint fails to state a claim. Defendant’s Professional
Conduct and Anti-Harassment Policy, which Plaintiff signed upon of his initial
employment with Defendant, does not constitute an enforceable contract
under Kansas law, which this Court applies to such claims. See Getz v. Board
of County Com'rs, 194 F.Supp.2d 1154, 1168 (D.Kan. 2002) (“[u]nder
Kansas law, personnel rules which are not bargained for cannot form an
express or implied contract of employment as they are merely a unilateral
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expression of ‘company policy.’ [Citation omitted.]”; Johnson v. National
Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976) (no meeting of the
minds is evidenced by the defendant's unilateral act of publishing company
policy.) This claim must therefore be dismissed.
E. Negligent Supervision
Plaintiff’s amended complaint alleges that Defendant breached its duty
to Plaintiff to prevent its employees from acting in any way to harm him.
Specifically, Plaintiff alleges that Defendant failed to adequately train
Manager Carr to properly conduct an investigation and to conduct
investigations in a non-discriminatory manner. Dk. 24, p. 20. Defendant
counters that Kansas does not recognize any cause of action for a
defendant’s negligence in supervising a plaintiff’s superior or preventing civil
rights violations. Defendant is correct. In 1990, the Tenth Circuit found that
Kansas would not recognize the common-law tort of negligent supervision
under which an employer would be liable for negligent supervision of an
employee's superior which allegedly allowed the superior to violate
employee's civil rights. Polson v. Davis, 895 F.2d 705, 710 (10th Cir. 1990).
See Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499 (D.Kan. 1993);
Lawyer v. Eck & Eck Mach. Co., Inc., 197 F.Supp.2d 1267 (D.Kan. 2002) and
cases cited therein. Although Kansas law recognizes the theory of negligent
supervision in some circumstances, they are not present here. See e.g.,
Nero v. Kansas State University, 253 Kan. 567 (1993) (sexual assault);
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C.J.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993) (sexual assault). The Court is
unaware of any change in Kansas law since 1990 that would enable Plaintiff
to pursue this claim as a separate state law cause of action.
F. Intentional Interference with Contract
Plaintiff additionally alleges that Wassel and Carr interfered with “a
collective bargaining agreement for continued employment” between
Defendant and Plaintiff. Wassel is alleged to have discriminated against
Plaintiff in a grievance hearing, and Carr is alleged to have willfully
conducted an inadequate investigation by not having a union steward
present and by not providing written notification to the union, in violation of
the terms of the CBA. Dk. 24, p. 20-22. These claims require the Court to
interpret the terms of the CBA, so are preempted.
G. § 301 Claim
Having found that Section 301 preempts Plaintiff's claims, the Court
determines whether Plaintiff has stated a claim under that statute. Federal
court review of allegations against employers for breach of collective
bargaining agreements is appropriate only when an employee also alleges
that the Union representing him breached its duty of fair representation. See
Young v. United Auto. Workers-Labor Employment & Training Corp., 95 F.3d
992, 996 (10th Cir. 1996). Here, Plaintiff admits (Dk. 28) that he is not
claiming that his Union breached its duty of fair representation, which is an
‘indispensable predicate’ for the plaintiff's suit.” United Parcel Services, Inc.
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v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). Even
assuming all allegations in the complaint to be true, Plaintiff has failed to
state a § 301 or hybrid claim upon which relief can be granted.
VI. Conclusion
Amendment of any claims which are not properly exhausted, or are
untimely, or not are cognizable under the relevant statute or decisional law
would be futile. All claims but the following are dismissed: Plaintiff’s § 1981
claim for racial termination; and Plaintiff’s § 1981 and Title VII claims of
racial harassment.
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss (Dk.
26) is granted in part and is denied in part in accordance with the terms of
this memorandum.
Dated this 24th day of October, 2013, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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