Richardson v. Kellogg's et al

Filing 18

MEMORANDUM AND ORDER: Defendants' Motion to Dismiss 8 , which the Court converted in part to a motion for summary judgment, is granted. Signed by District Judge Daniel D. Crabtree on 2/4/2015. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CLYDELL RICHARDSON,
Plaintiff,
Case No. 14-CV-2372-DDC-JPO
v.
KELLOGG COMPANY, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, a pro se litigant, filed this lawsuit alleging that defendants denied him
retirement pay and medical benefits because of his race and in retaliation for complaining about
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (Doc. 1 at 6).
On August 28, 2014, defendants filed a Motion to Dismiss (Doc. 8) seeking dismissal for two
reasons: (1) plaintiff failed to exhaust administrative remedies before asserting an ERISA claim;
and (2) plaintiff’s Title VII claims failed to state a claim for relief.
On December 22, 2014, the Court entered a Memorandum and Order (Doc. 13),
converting defendants’ motion to dismiss plaintiff’s ERISA claim to a motion for summary
judgment and providing notice to the parties that they may submit additional materials outside of
the pleadings, on or before February 1, 2015, for the Court to consider now that it has converted
defendant’s motion to one seeking summary judgment. The Court also concluded in that Order
that plaintiff had failed to state a claim for relief under Title VII, but granted plaintiff leave to
file an Amended Complaint against defendants by February 1, 2015.
In response to the Court’s Order, defendants submitted a Supplemental Memorandum in
Support of Summary Judgment (Doc. 15), and plaintiff filed an Amended Complaint (Doc. 17).
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After considering the additional submissions by the parties, the Court grants defendants’ motion
to dismiss (Doc. 8), which it converted in part to a motion for summary judgment on plaintiff’s
ERISA claim, for two reasons. First, plaintiff’s ERISA claim fails because he failed to exhaust
his administrative remedies. Second, the Court dismisses plaintiff’s Amended Complaint for
failing to state a claim for relief under Title VII. The Court explains the reasons for its decisions
below.
I.

Factual Background

The following facts are alleged in the Amended Complaint (Doc. 17), and viewed in the
light most favorable to plaintiff. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (citation
omitted). Because plaintiff brings this lawsuit pro se, the Court construes his Complaint liberally
and holds it to a less stringent standard than formal pleadings drafted by lawyers. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court does not cross the line and
assume a role as the pro se litigant’s advocate. Id.
Plaintiff, who is African–American, worked for defendant Kellogg Company from 1973
until his retirement in 2013. Plaintiff alleges that he suffered a workers’ compensation injury in
February 2012 and that he was approved for short-term disability on August 20, 2012. Plaintiff
claims he received short-term disability payments until November 4, 2012, when defendants
stopped those payments without notice.
On April 22, 2013, plaintiff received a letter from the Kellogg Company stating that he
had health care coverage effective April 12, 2013. Plaintiff claims that on May 20, 2013, he
received a check stub in the amount of $1,741.14, but that the money was never put into his bank
account. Plaintiff alleges that, at some later point in time, he had to undergo surgery, and he
learned that he did not have medical insurance coverage.

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Plaintiff alleges that he “used every administrative remedy available” to him but was
“denied the appeal process” (Doc. 17 at 2). He also asserts that the Kellogg Company breached
his retirement contract by denying him health insurance benefits. Plaintiff claims that the
Kellogg Company retaliated against him because of a workers’ compensation injury, denied him
reasonable accommodation, and violated “the Disability Act” (Doc. 17 at 2–3). Plaintiff also
asserts that the Kellogg Company has discriminated against him because of his race and
retaliated against him when he complained of being treated unfairly because of his race.
II.

Legal Standard
a. Motion to Dismiss

Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does
not require ‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” which, as the
Supreme Court explained, simply “‘will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss [under Fed. R. Civ. P. 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. 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. (citing Twombly, 550 U.S. at 556). “Under
this standard, ‘the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.’” Carter v. United States,

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667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007)).
Although the Court must assume that the factual allegations in a complaint are true, it is
“‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Id. at 1263
(quoting Iqbal, 556 U.S. at 678). “‘Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice’” to state a claim for relief. Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court may
consider not only the complaint itself but also exhibits attached to and documents incorporated
into the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)
(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); TMJ Implants,
Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007); Indus. Constructors Corp. v. U.S.
Bureau of Reclamation, 15 F.3d 963, 964–65 (10th Cir. 1994)). A court “‘may consider
documents referred to in the complaint if the documents are central to the plaintiff’s claim and
the parties do not dispute the documents’ authenticity.’” Id. (quoting Alvarado v. KOB–TV,
L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)) (internal quotation omitted).
b. Summary Judgment
Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When it applies this standard, the Court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1245–46 (10th Cir. 2010)). “An issue of fact is ‘genuine’ ‘if the evidence is such that a

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reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson,
477 U.S. at 248)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert.
denied, 506 U.S. 1013 (1992)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
To the contrary, it is an important procedure “designed ‘to secure the just, speedy and
inexpensive determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).

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III.

Analysis
a. Failure to Exhaust ERISA Claim

Although plaintiff does not assert a claim under ERISA explicitly, the Court construes his
Complaint to assert such a claim because he contends defendants discriminated against him and
breached plaintiff’s retirement contract by denying him retirement and medical benefits that, he
claims, he is entitled to receive under his retirement plan. ERISA allows a participant or
beneficiary of an employee benefit plan to bring a civil action “to recover benefits due to him
under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of a plan.” 29 U.S.C. § 1132(a)(1)(B). While neither
the Complaint nor the Amended Complaint mentions ERISA by name, plaintiff “cannot sidestep
the legal consequences of his substantive allegations simply by avoiding explicit reference to a
particular ERISA plan in his pleadings.” Karls v. Texaco, Inc., 139 F. App’x 29, 31 n.1 (10th
Cir. 2005).
It is well established that a plaintiff must exhaust his administrative remedies before
bringing an ERISA benefits claim in court. See Whitehead v. Okla. Gas & Elec. Co., 187 F.3d
1184, 1190 (10th Cir. 1999); see also Lewis v. U.F.C.W. Dist. Union Local Two & Emp’rs
Pension Fund, 273 F. App’x 765, 767 (10th Cir. 2008) (citing McGraw v. Prudential Ins. Co.,
137 F.3d 1253, 1263 (10th Cir. 1998)). The exhaustion requirement “‘derives from the
exhaustion doctrine permeating all judicial review of administrative agency action, and aligns
with ERISA’s overall structure of placing primary responsibility for claim resolution on fund
trustees.’” Lewis, 273 F. App’x at 767–68 (quoting McGraw, 137 F.3d at 1263). “Any other
procedure would permit ‘premature judicial interference’ and ‘would impede those internal

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processes which result in a completed record of decision making for a court to review.’” Id. at
768 (quoting McGraw, 137 F.3d at 1263).
Defendants argue that they are entitled to summary judgment against plaintiff’s ERISA
claim because the unconverted facts establish that plaintiff has not exhausted his administrative
remedies. In support of this argument, defendants have submitted the affidavit of Judith Cotton
(Doc. 16), who the Kellogg Company employs as a Benefit Specialist. Ms. Cotton states that on
April 7, 2014, the Kellogg Company provided plaintiff with a Claim Initiation Form that
described the Claim and Appeal Process for plaintiff’s retiree health care coverage (Doc. 16-1).
After receiving a request from plaintiff to send him another form, the Kellogg Company sent him
a second Claim Initiation Form on April 30, 2014 (Doc. 16-2). Ms. Cotton affirms that plaintiff
never has filed either Claim Initiation Form that the Kellogg Company sent him and he has never
filed any appeal over issues connected to his retirement benefits or health care coverage.
Plaintiff has submitted no admissible evidence to controvert the facts established by Ms.
Cotton’s affidavit. While plaintiff states in his Amended Complaint that he has “used every
administrative remedy available which includes correspondence with Kellogg’s Benefit Center,
[and] communication with [the Chief Union Steward] and the Board of Labor” (Doc. 17 at 2),
plaintiff’s conclusory allegations cannot defeat summary judgment. The Court previously
warned plaintiff that, to avoid summary judgment, he “must ‘present some evidence to support
[his] allegations; mere allegations, without more, are insufficient to avoid summary judgment.’”
Doc. 13 at 11 (quoting Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997) (citation
omitted)). The Court also noted that although plaintiff proceeds pro se in this action, he is not
excused from the requirement to present admissible evidence to support his claims and thereby
avoid summary judgment. Id. (citing Brown v. Dorneker, No. 06-3245-CM, 2008 WL 3334025,

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at *1 (D. Kan. Aug. 8, 2008) (a pro se plaintiff has “the burden of coming forward with evidence
to support his claims as required by the Federal Rules of Civil Procedure and the local rules of
this court. Even a pro se plaintiff must present some specific factual support for his allegations
[to avoid summary judgment].” (citation omitted))). Here, plaintiff has failed to present any
admissible evidence creating a genuine issue of fact whether he exhausted his administrative
remedies before asserting an ERISA claim. Thus, the uncontroverted summary judgment facts,
when viewed in the light most favorable to plaintiff, establish that plaintiff has failed to exhaust
administrative remedies, which is a prerequisite to asserting an ERISA claim.
The Court also notes that it may waive the exhaustion requirement “‘where resort to
administrative remedies would be clearly useless.’” Lewis, 273 F. App’x at 768 (quoting
McGraw, 137 F.3d at 1264). Plaintiff makes no argument here that it would have been futile for
him to comply with the administrative exhaustion requirements, and the Court has found no
evidence in the summary judgment record showing that exhaustion would have been “useless.”
Thus, the Court grants summary judgment against plaintiff’s ERISA claim because he failed to
exhaust administrative remedies.
b. Failure to State a Claim Under Title VII
In its December 22, 2014 Memorandum and Order, the Court held that plaintiff’s original
Complaint failed to state a claim for relief under Title VII as required by the Twombly/Iqbal
pleading standard. But the Court recognized that plaintiff could cure the deficiencies in his
Complaint if given the opportunity to amend, and, therefore, the Court granted plaintiff leave to
amend his Complaint “to include factual allegations instead of conclusory statements and fully
describe[ ] the circumstances surrounding the alleged Title VII violations by defendants . . . .”

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Doc. 13 at 15. In response to the Court’s Order, plaintiff filed an Amended Complaint (Doc. 17),
but it suffers from the same deficiencies as his original Complaint.
As the Court explained in its December 22, 2014 Memorandum and Order, in Khalik v.
United Air Lines, the Tenth Circuit described the pleading standard for employment
discrimination and retaliation claims under Twombly/Iqbal. 671 F.3d 1188, 1193–94 (10th Cir.
2012). In Khalik, our Circuit explained that while a plaintiff is not required to “set forth a prima
facie case for each element” to plead a claim of discrimination or retaliation successfully, he
must “set forth plausible claims.” Id. at 1193.
Construing plaintiff’s Amended Complaint liberally, plaintiff brings discrimination and
retaliation claims under Title VII. He also alleges that the Kellogg Company violated “the
Disability Act” and denied him reasonable accommodation,1 and he asserts that the Kellogg
Company retaliated against him because he had a workers’ compensation injury (Doc. 17 at 2–
3). Even construing plaintiff’s Amended Complaint liberally, he has failed to state plausible
claims for relief. Instead, he makes “general assertions of discrimination and retaliation, without
any details whatsoever . . . .” Khalik, 671 F.3d at 1193. These types of allegations are
insufficient to survive a motion to dismiss. Id.
In Khalik, the Tenth Circuit recognized that an employment discrimination plaintiff
“should have at least some relevant information to make the claims plausible on their face.” Id.
And it provided a list of facts that the plaintiff could have pleaded in that case to satisfy the
plausibility requirement, including: (1) who the plaintiff requested FMLA leave from and who
denied her, (2) when the plaintiff requested leave and for what purpose, (3) who she complained
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It does not appear that plaintiff asserted a disability claim in his EEOC charge. See Doc. 1 at 7
(charge makes no mention of disability discrimination and the boxes are checked for discrimination based
on “race” and “retaliation” but not “disability”). Plaintiff cannot assert a claim for violation of the
Americans with Disabilities Act without first exhausting his claim before the EEOC. MacKenzie v. City
and Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (citations omitted).

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to about not receiving leave and when she was terminated, (4) how the defendant treated the
plaintiff compared to similarly situated individuals, (5) why the reasons given by her employer
for her termination were pretextual, (6) what made the plaintiff believe the defendant’s actions
were connected to discrimination, (7) who the plaintiff complained to about the discrimination,
when she complained, and what the response was, and (8) who criticized the plaintiff’s work,
what was said, and how she responded to the criticism. Id. at 1193–94. Our Circuit emphasized
that the plaintiff was not required to plead each of the listed facts, but the Twombly/Iqbal
standard demanded that she include “some further detail for a claim to be plausible.” Id. at 1194.
The Khalik plaintiff failed to allege any of the facts listed above. Id. She also failed to
provide any context for her claim—such as facts stating when she complained about the
discrimination or to whom, facts showing similarly situated employees were treated differently,
or facts relating to the actual discrimination. Id. The Tenth Circuit held that the plaintiff’s
complaint included “nothing other than sheer speculation” to link the actions of the defendant to
any discriminatory or retaliatory motive. Id. Without more, the court concluded that plaintiff’s
claims were not plausible under the Twombly/Iqbal standard and affirmed the district court’s
dismissal of the plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6). Id.
Here, the Court advised plaintiff in its December 22, 2014 Memorandum and Order that
his original Complaint suffered from the same problems identified by the Tenth Circuit in
Khalik. The Court explained that plaintiff had provided “no facts about the alleged
discrimination or any information about his complaints of discrimination—such as when plaintiff
complained and to whom he complained,” and that he had failed to provide any factual details to
support his claim that defendants treated him differently than similarly situated non-African
Americans (such as “who was treated differently, when they were treated differently, or how

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they were treated differently”). Doc. 13 at 14–15. Thus, the Court put plaintiff on notice of his
original Complaint’s pleading deficiencies and directed him to the kind of detail that he must
include in an amended pleading.
Despite this guidance from the Court, plaintiff has filed an Amended Complaint that
lacks sufficient detail to set forth plausible claims of discrimination and retaliation under Title
VII.2 While plaintiff has included some additional factual allegations in the Amended
Complaint, the substance of the new allegations fails to provide any context for his
discrimination and retaliation claims. Plaintiff’s Amended Complaint fails to include facts about
the alleged discrimination, such as why the denial of retirement or medical benefits was based on
his race, what makes the plaintiff believe that defendants’ actions were connected to race

The Amended Complaint’s factual allegations also fail to support a workers’ compensation
retaliation claim—to the extent plaintiff has attempted to assert such a claim in his Amended
Complaint—for the same reasons addressed above. Kansas courts apply the McDonnell Douglas burdenshifting framework to workers’ compensation retaliation claims. Gonzalez-Centeno v. N. Cent. Kan.
Reg’l Juvenile Det. Facility, 101 P.3d 1170, 1177 (Kan. 2004) (citation omitted). Under that framework,
a plaintiff must establish a prima facie case of retaliation which includes the following elements: (1) the
plaintiff filed a claim for workers’ compensation benefits or suffered an injury for which a claim might be
asserted in the future; (2) the employer had knowledge of this; (3) the employer terminated the plaintiff’s
employment; and (4) a causal connection existed between the protected activity or injury and the
termination. Id. (citation omitted). If the plaintiff meets the prima facie burden, the defendant must
come forward with a legitimate, nonretaliatory reason for the discharge. Id. The plaintiff then has the
burden of showing by a preponderance of the evidence that this legitimate reason is a pretext for
retaliation. Id.
2

Here, plaintiff’s Amended Complaint omits any facts alleging a plausible claim for workers’
compensation retaliation, such as how defendants retaliated against him for filing a workers’
compensation claim, how the denial of benefits was based on plaintiff’s workers’ compensation claim,
what makes plaintiff believe defendants’ actions were connected to his workers’ compensation claim, or
how similarly situated employees were treated differently. The Court declines to grant plaintiff leave
again to amend his Complaint to assert facts to support a workers’ compensation retaliation claim because
it has already put plaintiff on notice of these pleading deficiencies as they apply to his Title VII claims,
and it gave plaintiff a fair opportunity to cure those deficiencies by granting him leave to file an Amended
Complaint. Plaintiff failed to follow the Court’s directive or assert the facts necessary to support
plausible Title VII claims. See Hall, 935 F.2d at 1110 (a court may dismiss a plaintiff’s complaint sua
sponte “when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing
him an opportunity to amend his complaint would be futile.” (citation and internal quotation marks
omitted)). However, out of caution, the Court will dismiss the workers’ compensation retaliation claim,
to the extent plaintiff alleges such a claim in his Amended Complaint, without prejudice.

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discrimination, or how similarly situated employees were treated differently. Plaintiff also fails
to plead any facts about the alleged retaliation. While plaintiff claims that defendants “retaliated
against [him] when [he] complained of being treated unfairly because of [his] race,” (Doc. 17 at
3), he fails to allege any facts about the unfair treatment that was based on his race or any details
about the complaint of discrimination such as the person to whom plaintiff complained, when
plaintiff made the complaint, and defendants’ response to the complaint. Like the plaintiff in
Khalik, plaintiff’s amendment here has asserted just conclusory allegations, and it fails to set
forth plausible claims of discrimination or retaliation under the Twombly/Iqbal standard. Thus,
the Court dismisses plaintiff’s Title VII claims for failure to state a claim for relief.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion to
Dismiss (Doc. 8), which the Court converted in part to a motion for summary judgment, is
granted.
IT IS SO ORDERED.
Dated this 4th day of February, 2015, at Topeka, Kansas
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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