Jones v. Maritz Research Company

Filing 17

MEMORANDUM AND ORDER granting 15 Motion to Dismiss. Signed by U.S. District Senior Judge Sam A. Crow on 1/27/15. Mailed to pro se party Bonita Jones by regular & certified mail; Certified Tracking Number: 7010 2780 0003 1927 2524 (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BONITA L. JONES,
Plaintiff,
v.

Case No. 14-2467-SAC

MARITZ RESEARCH COMPANY,
Defendant.

MEMORANDUM AND ORDER
This pro se employment discrimination case comes before the Court on
Defendant’s motion to dismiss Plaintiff’s amended complaint for failure to
state a claim. Plaintiff timely filed her amended complaint in response to the
Court’s prior order, which invited her to do so as to her race claims. (Dk.13).
The Court appreciates that the Plaintiff has now printed or typed her
information, making her complaint legible. The Court hereby incorporates by
reference its prior order (Dk. 13) to the extent not inconsistent with its
findings herein.
The issue is whether Plaintiff has, by her amended complaint,
sufficiently stated a claim for race discrimination. The complaint checks the
boxes for race-based termination of her employment, disparate terms and
conditions of her employment, retaliation, and harassment. Plaintiff’s short
narrative describing the conduct she believes is discriminatory alleges that

her supervisor, Suzanne Gyro, was short-tempered, that plaintiff was always
singled out as being an “incorrect wanna be,” and that plaintiff’s supervisor
said plaintiff was annoying and was disturbing the other workers, which
irritated her. Dk. 14 p. 3. Plaintiff further alleges that her supervisor
retaliated against Plaintiff for asking questions about different projects or
work duties, which Plaintiff felt was important for her work performance.
Plaintiff alleges “constant harassment.” Id.
Plaintiff attaches to her amended complaint a page of “additional
information,” which continues the factual narrative. Plaintiff alleges that
Suzzane Gyro and Mary, a co-worker, were very suppressing, shorttempered, and hostile toward her and another co-worker. Plaintiff became
offended by her co-worker’s behavior, and the constant harassment
worsened to the point that it became the norm. “She” spoke in harsh and
disrespectful tones that intimidated Plaintiff. One day her temporary trainer,
Shamirra, said to her in a hostile way, “Look Lady! I almost hurt myself.
Close the damn draw[er].” Plaintiff felt constantly harassed, ridiculed, and it
“became stronger, as if I was an idiot.” A co-worker on her team lashed out
at another co-worker, telling her she didn’t know everything, and the
customers would always complain to Plaintiff about how rude and
disrespectful they were. One customer, in tears, asked to complain to
administration about the constant rudeness and disrespect. When Plaintiff
relayed the complaint to her supervisor and asked if the matter was being
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handled, her supervisor replied, “Yes. I barred her calls so she can never call
again.”
Plaintiff’s supervisor asked to meet with her a couple of times: once to
complain about Plaintiff’s low calls and later to tell Plaintiff she was not
improving, and that “they” were coming down hard on her because of
something Plaintiff had told a customer. Plaintiff felt that she was being
picked on for no reason, felt rejected and humiliated, and lost her peace of
mind. She felt unwanted and isolated from the other workers.
Plaintiff then states: “Where ‘Shame of Racism,’ was ‘covered’ up by
narrow min[d]edness, ignorance and vain Modesty ‘ Of Cohearsh dishonesty
This behavior [was accepted] by other[s], but as I observed, the behavior, I
became very offended.” After she met with Ms. Gyro another time, she was
terminated, then went to the EEOC and filed the underlying charge.
ANALYSIS
Racial Harassment/Disparate Treatment
The Court’s prior order attempted to explain to Plaintiff what must be
shown to state a claim for racial harassment.1
… it is insufficient merely to allege that Plaintiff’s
supervisor and co-workers were consistently rude to her. Plaintiff’s
complaint must include specific facts that she was plausibly subjected
to a hostile work environment based on her race or color. Plaintiff’s
complaint alleging a racially hostile work environment should show
that the workplace is permeated with discriminatory intimidation,
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That order erred in stating that Plaintiff’s EEOC charge alleged only racial harassment, as
that charge arguably included race-based termination and disparate treatment as well. See
Dk. 13, p. 6.

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ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
environment, and that such action was based on her race/color. See
Morris v. City of Colorado Springs, 666 F.3d 654 (10th Cir. 2012).
Dk. 13, p. 7. Having reviewed the amended complaint, and construing it in
the light most favorable to the Plaintiff, the Court finds that the amended
complaint fails to meet the legal standard. Nothing in the amended
complaint states the race or color of Plaintiff’s supervisor, coworkers, or
customers. But even if the complaint had stated that Plaintiff is black and
others were not, nothing in the factual allegations raises a plausible
inference that Plaintiff was treated differently than her co-workers because
Plaintiff is black. Nor do the facts show “severe or pervasive” acts by the
defendant sufficient to alter the conditions of Plaintiff’s employment.
Plaintiff’s amended complaint contains too few facts, too many conclusions,
and falls far short of the plausibility required by Iqbal, Twombly, and Khalik.
See Dk. 13.
Racial Termination
To state forth a prima facie case of discrimination under Title VII, a
plaintiff must establish that (1) she is a member of a protected class, (2) she
suffered an adverse employment action, (3) she was qualified for the
position at issue, and (4) she was treated less favorably than others not in
the protected class. See Khalik, 671 F.3d at 1192 (internal citation omitted).

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Plaintiff establishes that she is black and was terminated, but none of the
alleged facts meet the third or fourth elements or otherwise give rise to an
inference of discrimination. This claim must be dismissed.
Retaliation
To set forth a prima facie case of retaliation under Title VII, a plaintiff
must establish that (1) she engaged in protected opposition to
discrimination, (2) a reasonable employee would have found the challenged
action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action. Khalik, 671 F.3d at
1193 (internal quotations and citation omitted).
In her EEOC charge, Plaintiff checked the box only for “race,” and not
the box for “retaliation.” Dk. 1, p. 9. And her narrative arguably alleges
disparate treatment, discrimination, and termination, but neither mentions
retaliation nor states facts that may support such a claim. Therefore, the
retaliation claim in Plaintiff’s amended complaint is outside the scope of the
investigation that could reasonably be expected to grow out of her EEOC
charges. See Atkins v. Boeing Co., 1933 WL 186170, *3 (D.Kan. 1993), aff’d
28 F.3d 112 (10th Cir. 1994). Accordingly, Plaintiff has failed to exhaust her
administrative remedies for such a claim.
But even if a retaliation claim had been included in Plaintiff’s EEOC
charge, Plaintiff’s amended complaint fails to state a plausible claim of
retaliation. The only retaliation arguably alleged in the complaint is that
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Plaintiff’s supervisor retaliated against her because she asked questions
related to her job. But that kind of retaliation is not illegal under Title VII.
Nothing in the amended complaint shows that Plaintiff engaged in protected
opposition to race discrimination (such as making an internal complaint
about race discrimination or filing an EEOC charge) before she was
terminated or subjected to other adverse action. See McCue v. State of
Kansas, 165 F.3d 784, 789 (10th Cir. 1999); Pastran v. K–Mart Corp., 210
F.3d 1201, 1205 (10th Cir. 2000). Instead, the facts allege that Plaintiff filed
her EEOC charge after she was terminated. Accordingly, the Court finds that
the amended complaint fails to show a plausible causal connection between
Plaintiff’s filing of her EEOC charge, or any other protected activity, and any
adverse employment action. Accordingly, any claim of retaliation shall also
be dismissed.
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss (Dk.
15) is granted.
Dated this 27th day of January, 2015, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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