Hollis v. Aerotek Staffing Agency et al

Filing 53

MEMORANDUM AND ORDER: Plaintiff's 42 Motion to Dismiss defendant EC Manufacturing LLC without prejudice is denied and ECM's 47 Motion to Dismiss for Lack of Jurisdiction is granted. Defendants' EEOC and Ventura's 36 Motion to Dismiss is granted and plaintiff's 41 Motion for Leave to Amend Complaint is denied as moot. Signed by U.S. District Senior Judge Sam A. Crow on 2/24/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHAMBALA J.E. HOLLIS,
Plaintiff,
v.

Civil No. 14-2494-SAC

AEROTEK, INC, BRAD MULCAHY,
EC MANUFACTURING LLC,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and
FRANK E. VENTURA,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, acting pro se, brings various civil rights and tort claims to
redress an alleged discriminatory hiring practice by a staffing agency
(Aerotek), its employee (Mulcahy), and its client/plaintiff’s potential
employer (EC Manufacturing), and an alleged failure by the EEOC and its
investigator (Ventura) to properly investigate and pursue his claim against
those entities.
Plaintiff has filed a motion to dismiss Defendant EC Manufacturing LLC
as a party, without prejudice. ECM has not responded to that motion, but
has instead filed a motion for judgment on the pleadings.
Defendants EEOC and Ventura have filed a motion to dismiss, and also
seek to substitute the United States of America for them. Plaintiff has moved
to amend his complaint. These disputed motions are examined below.

I. Facts
The Court states the facts as alleged in the first amended complaint
(Dk. 27). On June 9, 2014, Plaintiff, an African-American male, was
receiving disability benefits from the Social Security Administration but
wished to supplement those benefits by working. He conducted a job search
on defendant Aerotek’s website, saw several job postings with their
accompanying descriptions and requirements, and completed online
applications for at least two jobs for which he thought he was qualified in the
light industrial production/assembly field, attaching his resume. Plaintiff
understood that Aerotek was in charge of the recruitment process for an
unknown “start up” company based in Shawnee Mission, Kansas. Plaintiff
called Aerotek on June 11th to ask whether the jobs he applied for were still
available and was told to come in the next day for an interview.
When Plaintiff did so, he was interviewed by Aerotek employee Brad
Mulcahy. He reviewed Plaintiff’s resume and asked why Plaintiff had a fouryear gap in his employment. Plaintiff replied that he was living on his
disability benefits. Mr. Mulcahy then looked doubtful and began making
statements such as: "I don't know if you're a good fit.....the people we
recruit for will have a fit if I give them your resume or send you over.”
Mr. Mulcahy then told Plaintiff he needed one or two years’ minimum
of production/assembly experience for the job. Plaintiff responded that
Aerotek’s website didn't say so, then touted his own qualifications,
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experience and attitute. Mr. Mulcahy responded that not all details are
posted on the website, and that people like plaintiff come in all the time
saying how well they will work. Mr. Mulcahy then suggested that the only
way for Plaintiff to obtain employment with the company whose jobs he had
applied for was for Plaintiff to work at a different job site for two or three
weeks to see if he could perform the job duties. Plaintiff considers that
requirement to be a “work-related medical examination,” and says he felt
distressed and humiliated during the interview process. Plaintiff brings a
claim of “emotional distress” against Defendant Mulcahy based on his
conduct during the employment interview process.
Plaintiff also alleges that the statements made to him, the questions
asked of him, and the requirements placed on him during that interview with
regard to Plaintiff’s hiring at EC Manufacturing violate Title VII (race) and the
ADA. Plaintiff further contends that Aerotek yielded to EC Manufacturing’s
racial preferences. From this, one could reasonably infer that EC
Manufacturing is the employer whose jobs Plaintiff had applied for. Plaintiff’s
claims against Aerotek and Mulcahy are based on the above facts.
Plaintiff’s claims against the EEOC and Ventura arise from the following
facts. On June 16, 2014, Plaintiff went to the EEOC to file a complaint of
discrimination based on his experience at Aerotek described above. His case
was assigned to EEOC Investigator Frank E. Ventura, who interviewed him
about his complaint. During the interview, Plaintiff found Ventura’s
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demeanor and manner of questioning to be rude, offensive, and frustrating.
For example, Ventura allegedly asked Hollis why he was filing a complaint
and advised him to just move on with his life since Plaintiff was hired
through another staffing agency the day after his interview with Aerotek.
On July 16, 2014, the EEOC issued Plaintiff a Notice of Right-to-Sue
Letter, and Plaintiff subsequently requested and received copies of his EEOC
file. Upon review of that file, Plaintiff learned that the EEOC had not filed a
charge against Aerotek, contrary to what Ventura had led him to believe
during the interview. Plaintiff also alleges that Ventura had falsified various
questions Ventura had asked and answers Plaintiff had allegedly given
during his interview, as reflected in his interview notes. Specifically, Plaintiff
alleges that Ventura added the words italicized below:
4. Q: Who was hired for the position you applied for? A:"How would I
know? That is what you need to find out. I'm sure none of them were
black.’
5. Q. How did you know that none of them were black? A: "I just
know."
Plaintiff also claims the following italicized sentence is untrue: “CP indicated
this was “racial steering” and refused to accept any position and walked
out.” Plaintiff contends he never told Ventura that making him work another
assignment first was “racial steering." Plaintiff agrees that he and Mr.
Mulcahy never reached an agreement about jobs, but claims the two of them
left his office together.
Plaintiff alleges that Ventura unduly prejudiced or compromised the
integrity of the investigation not only by dissuading EEOC’s upper
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management from conducting a full and fair hearing, but also by indirectly
influencing the Kansas Human Right Commission to agree with the EEOC’s
findings. Plaintiff also alleges that Ventura defamed or libeled him, causing
him emotional distress and violating the First Amendment. Plaintiff further
claims that the EEOC’s handling of his charge failed to comply with its own
Compliance Manual, and violated his procedural and/or substantive due
process rights.
II. Motion to Dismiss Standard -12(b)(6) motions
To survive a motion to dismiss for failure to state a claim, a complaint
must have 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 [127 S.Ct. 1955]. 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 [127 S.Ct. 1955].
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884
(2009). “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

5

support a legal claim for relief.” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210,
1215 n. 2 (10th Cir. 2007).
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 any documents “incorporated into the complaint by reference,”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct.
2499, 168 L.Ed.2d 179 (2007), and documents attached to the complaint,
Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012)
(quotations and citations omitted).
Pro se complaints, however inartfully pleaded, must be liberally
construed, and are held to less stringent standards than formal pleadings
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89 (2007). See Martinez v.
Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). “[The] court, however, will
not supply additional factual allegations to round out a plaintiff's complaint
or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113
F.3d 1170, 1173–74 (10th Cir. 1997) (quotations and citations omitted). The
court should not be the pro se litigant's advocate, Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), and will not accept as true conclusory
allegations unsupported by factual allegations. Oxendine v. Kaplan, 241 F.3d
1272 (10th Cir. 2001).
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III. Defendant EC Manufacturing
On January 8, 2015. Plaintiff moved to dismiss ECM as a party, without
prejudice, until the conclusion of discovery. (Dk. 42) No reason was stated
except “good cause.” ECM did not file a response to that motion, but four
days later moved for judgment on the pleadings, apparently desiring that
any dismissal be with prejudice. (Dk. 47). Its motion alleges that Plaintiff’s
complaint fails to provide sufficient notice of any claims against ECM as
required by Fed. R. Civ. Pro. 8, and fails to show exhaustion of
administrative remedies as required for Plaintiff’s Title VII and ADA claims.
Plaintiff has not responded to that motion.
A. Administrative Exhaustion
Both the ADA and Title VII require a party to exhaust administrative
remedies before bringing a suit in federal court. Apsley v. Boeing Co., 691
F.3d 1184, 1210 (10th Cir. 2012). “As a general rule, a plaintiff must file a
charge against a party with the EEOC before she can sue that party under
Title VII.” Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1185 (10th Cir.
1999). Where, as here, the EEOC charge does not name a party as a
respondent, the Plaintiff must show the charge informally refers to the party,
or show sufficient identity of interest between the named respondent and
the unnamed party “to satisfy the intention of Title VII that the defendant
have notice of the charge and the EEOC have an opportunity to attempt
conciliation.” Romero v. Union Pac. R.R., 615 F.2d 1303, 1311 (10th Cir.
7

1980). See Rathke v. HCA Mgmt. Co., 744 F. Supp. 1037, 1038-39 (D. Kan.
1990).
Plaintiff’s EEOC charge names only “Aerotek Staffing” as the entitly
Plaintiff believed discriminated against him on the basis of his race and his
disability. Dk. 46, Exh. 4, p. 5. Its narrative states:
On or about June 9, 2014, I applied for several positions in
Production and Assembly. On or about June 12, 2014, I met with a
Recruiter who reviewed my resume and asked me why I had not
worked from 2009 to 2013. I answered that I was disabled and living
off of disability benefits during that time. The Recruiter originally told
me I needed to [have] one to two years of experience in order to
qualify. Rather than offer me employment in the positions I had
applied for, the Recruiter told me he would send me to a different
production or assembly job for two to three weeks to see if I was able
to work before giving me the opportunity to work where I had
originally applied.
Id.
Nothing in Plaintiff’s EEOC charge names ECM as a respondent, or
otherwise refers to it by name. No allusion is made to any discriminatory
acts taken either by the employer who offered the positions Plaintiff had
originally applied for, or by the employer who provided the “different
production or assembly job.” Thus nothing in the charge would have put
ECM on notice that Plaintiff was making any assertions of discrimination
against it, or would have caused the EEOC to investigate any actions or
omissions by ECM.
Plaintiff’s first amended complaint alleges that Aerotek yielded to EC
Manufacturing’s racial preferences. Dk. 27, p. 3. From this, one could
8

reasonably infer that ECM is the employer whose jobs Plaintiff had originally
applied for. But no similar allegation is included in the EEOC charge, as
noted above. The claims against ECM in Plaintiff’s civil complaint are thus
outside the scope of the investigation that could reasonably be expected to
grow out of his EEOC charges. See Atkins v. Boeing Co., 1933 WL 186170,
*3 (D.Kan. 1993), aff’d 28 F.3d 112 (10th Cir. 1994). Because plaintiff failed
to name ECM as a respondent in his administrative charge, failed to allege
any discrimination by ECM in the EEOC claim’s factual narrative, and failed
to demonstrate sufficient identity of interest between ECM and Aerotek to
cure this omission, Plaintiff’s Title VII and ADA claims against ECM must be
dismissed for failure to exhaust administrative remedies. See Ning Lu v.
Kendall, 561 F. App'x 751, 754 (10th Cir. 2014)
B. Emotional Distress Claim
The court next considers ECM’s motion to dismiss Plaintiff’s state tort
claim of emotional distress, also called outrage. ECM alleges Plaintiff’s
complaint fails to give sufficient notice of this and other claims against ECM,
in violation of the notice pleading rule, Fed. R. Civ. Pro. 8.1
Having reviewed the complaint, the Court is uncertain whether Plaintiff
even intends to assert a claim of outrage against this defendant, as the
thrust of the claim is that defendants Mulcahy and Ventura caused Plaintiff
emotional distress by their conduct during their interviews with the Plaintiff.
1

The Court finds it unnecessary to address ECM’s argument that Plaintiff’s claims against it
under Title VII and the ADA are also subject to dismissal for this reason.

9

In the event that Plaintiff does intend to assert this claim against ECM, he
has not done so adequately.
To establish a prima facie case of intentional infliction of emotional
distress, plaintiff must show that (1) defendant's conduct was intentional or
in reckless disregard of plaintiff; (2) defendant's conduct was extreme and
outrageous; (3) there is a causal connection between defendant's conduct
and plaintiff's mental distress; and (4) plaintiff's mental distress is extreme
and severe. Bolden v. PRC Inc., 43 F.3d 545, 553 (10th Cir. 1994)) (citing
Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205 (1986)).
See Veladez v. Emmis Commc'ns, 290 Kan. 472, 229 P.3d 389, 394 (2010).
“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 determine whether Plaintiff has set forth a plausible claim.”
Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
The first amended complaint fails to include any facts suggesting that
ECM engaged in extreme and outrageous conduct, or that any conduct by
ECM caused Plaintiff extreme and severe mental distress. Plaintiff speculates
only that “Aerotek yielded to the customer’s racial preferences,” and implies
that ECM is the customer. Dk. 27, p. 7. But even assuming, arguendo, the
truth of that conclusory and unsupported statement, far more is required to
state a claim of emotional distress.

10

Kansas has set a very high standard for the common law tort of
intentional infliction of emotional distress. See Boe v. AlliedSignal Inc., 131
F.Supp.2d 1197, 1205 (D.Kan. 2001) (citing cases). To constitute sufficiently
extreme and outrageous conduct, the conduct must be “so outrageous in
character, and so extreme in degree, as to go beyond the bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
society.” Roberts v. Saylor, 230 Kan. 289, 293, (1981).
Moreover, Kansas courts are reluctant to extend this cause of action to
discrimination claims. Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir. 1994),
cert. denied, 516 U.S. 826, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995).
Even if defendant's decision to terminate plaintiff was driven by an
unlawful motive such as plaintiff's race, defendant's conduct is not
extreme or outrageous as those terms are construed by Kansas courts
for purposes of assessing the tort of intentional infliction of emotional
distress. See Gudenkauf v. Stauffer Communications, Inc., 922
F.Supp. 461, 464 (D.Kan.1996) (citing Anspach v. Tomkins Indus.,
Inc., 817 F.Supp. 1499, 1508 (D.Kan.1993); Fletcher v. Wesley
Medical Center, 585 F.Supp. 1260, 1262 (D.Kan.1984)); Boe, 131
F.Supp.2d at 1206. To be sure, the court strongly believes that if
defendant did terminate plaintiff's employment based on her race,
then such conduct would be “outrageous” as that term is used in
everyday parlance. But Kansas courts have decided to construe that
term so narrowly in the discrimination context (perhaps because other
avenues of relief are available for victims of discrimination), that
plaintiff's allegations are simply insufficient to rise to the level of
“outrageousness” required by Kansas courts to state a claim for
intentional infliction of emotional distress.
Briggs v. Aldi, Inc., 218 F.Supp.2d 1260, 1263 (D.Kan. 2002). See Rupp v.
Purolator Courier Corp., 790 F.Supp. 1069, 1073 (D.Kan. 1992) (finding

11

employment discrimination by itself, without aggravating factors like ethnic
slurs and physical threats, does “not amount to outrage.”)
Courts routinely dismiss claims of outrage on a Rule 12 motion when,
as here, all the elements are not alleged or when the alleged conduct is not
extreme and outrageous under state law. See e.g., Tennant v. Miller, __
Fed.Appx.__, 2014 WL 5509779 (10th Cir. 2014); West v. Boeing Co., 843
F.Supp. 670, 677–79 (D.Kan. 1994), reconsideration granted on other
grounds, 851 F.Supp. 395 (D.Kan. 1994); Moten v. American Linen Supply
Co., 155 F.R.D. 202, 205 (D.Kan. 1994). Accordingly, Plaintiff’s emotional
distress claim against ECM shall be dismissed for failure to state a claim. All
claims stated against ECM are thus subject to dismissal.
IV. Plaintiff’s Motion to Amend
Plaintiff has moved for leave to file a second amended complaint for
the purpose of including FTCA claims against the defendants. Dk. 41. But
this amendment is unnecessary, as the Court may afford pro se pleadings
liberal construction that construes their tort claims as arising under the
FTCA. See e.g., Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir. 1989); Elrod
v. Walker, 2011 WL 1113573, 1 (D.Kan. 2011). The Court shall do so here,
thus the motion to amend shall be denied.
V. EEOC as a Defendant
The EEOC argues that the Court should substitute the United States for
the EEOC because the EEOC cannot be sued in its own name. But the notice
12

of substitution named solely defendant Ventura, and the certification process
necessary for substitution has not been completed as to the EEOC. Nor
would substitution appear to be appropriate, as the process substitutes the
United States for a “defendant employee,” not for a federal agency
employer. See 28 U.S.C. § 2679(d)(1). No substitution of the United States
for the EEOC shall thus be permitted.
Nonetheless, the Tenth Circuit has held that no cause of action against
the EEOC exists for challenges to its processing of claims asserted against
third-party employers. In Scheerer v. Rose State College, 950 F.2d 661,
663 (10th Cir. 1991), cert. denied, 505 U.S 1205 (1992), a plaintiff brought
an action under various civil rights statutes to redress an alleged
discriminatory hiring practice by a college, and an alleged discriminatory
failure by the EEOC to properly to investigate and pursue her claim against
RSC. The Tenth Circuit affirmed the dismissal of the claim against the EEOC,
stating:
The circuits which have addressed the issue have uniformly held
that no cause of action against the EEOC exists for challenges to its
processing of a claim. (Citations omitted.) Following this established
line of authority, we hold that Plaintiff's claim for compensatory and
punitive damages against EEOC under the cited statutory authority
should have been dismissed pursuant to Fed.R.Civ.P. 12(b)(6), as
originally argued by EEOC below.
Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991) (alluding
to Title VII as the “cited statutory authority.”). See Scheerer v. Rose State
College, 774 F.Supp. 620 (W.D.Okl. 1991).
13

Plaintiff’s claims against the EEOC are all premised on its handling of
his claims against Aerotek, Mulcahy, or ECM, so shall be dismissed.
VI. Substitution of Parties - Defendant Ventura
A notice of substitution was filed, stating that pursuant to the Federal
Employees Liability Reform and Tort Compensation Act, 28 USC § 2679, “the
United States is hereby substituted for the individual defendant Frank
Ventura, with respect to Plaintiff’s state law causes of action.” Dk. 35.
Plaintiff objects to the substitution, contending that defendants have
misstated his tort claims, that he brings his libel claim pursuant to the First
Amendment, and that defendant Ventura’s intentional falsification of
information is not a discretionary function and is outside the scope of his
employment.
A. Exclusive Remedy Provison
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b); 2671-2680 (1988)
(hereinafter, “FTCA”), as amended by the Federal Employees Liability
Reform and Tort Compensation Act, provides that a suit against the United
States shall be the exclusive remedy for persons with claims for damages
resulting from the negligent or wrongful acts or omissions of federal
employees taken within the scope of their office or employment. See
Franklin Savings Corp., In re, 385 F.3d 1279, 1286 (10th Cir. 2004) (citing
28 U.S.C. § 2679(a) (providing that the FTCA remedy is exclusive” for all
claims which are cognizable under 28 U.S.C. § 1346(b))).
14

To the extent Plaintiff is alleging that Defendants were negligent,
“negligence claims against government agents are not cognizable under
Bivens, but may only be brought against the federal government itself under
the FTCA.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001)
(citations omitted). The “United States is the only proper defendant in an
FTCA action.” Oxendine, 241 F.3d at 1275 n. 4 (citations omitted).
Therefore, negligence claims arising from Ventura’s acts within the scope of
his office must be brought under the FTCA.
B. Certification - FTCA
Section 6 of the Federal Employees Liability Reform and Tort
Compensation Act provides that,
Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose, any civil action …
commenced upon such claim in a United States district court shall be
deemed an action against the United States under the provisions of
this title … and the United States shall be substituted as the party
defendant.
28 U.S.C. § 2679(d)(1).
Certification authority has been delegated to the United States
Attorney for the district where the civil action is brought. 28 C.F.R. § 15.4.
Barry R. Grissom, the United States Attorney for the District of Kansas, has
properly certified that at the time of the conduct alleged, defendant Ventura
was acting within the scope of his employment. See Dk. 35, Exh. A.

15

Plaintiff disagrees with that conclusion, but the statute vests no discretion in
the Court to make an independent determination of that matter for purposes
of substitution of parties. Instead, the statute’s provision that the action
“shall be deemed an action against the United States” upon proper
certification is mandatory. Accordingly, the United States is hereby
substituted for defendant Ventura as to any negligence claims brought
against him in this case.
C. Discretionary Function Exception
The FTCA waives the United States’ sovereign immunity from suit,
meaning it may be liable for certain torts its agents commit in the course of
their employment. See Domme v. United States, 61 F.3d 787, 788 (10th Cir.
1995). Ventura seeks to apply an exception to this rule – the discretionary
function exception. If a claim against the government falls within an
exception to the FTCA, the cause of action must be dismissed for want of
federal subject matter jurisdiction. See Dalehite v. United States, 346 U.S.
15, 31, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)
This exception provides that the Government is not liable for
[a]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved
be abused.

16

28 U.S.C. § 2680(a). The purpose of the exception is to “prevent judicial
‘second-guessing’ of legislative and administrative decisions grounded in
social, economic, and political policy through the medium of an action in
tort.” United States v. Varig Airlines, 467 U.S. 797, 814 (1984).
The exception covers only acts that are discretionary in nature, acts
that “involv[e] an element of judgment or choice,” Berkovitz, supra, at
536, 108 S.Ct., at 1958; see also Dalehite v. United States, 346 U.S.
15, 34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953); and “it is the nature
of the conduct, rather than the status of the actor” that governs
whether the exception applies. Varig Airlines, supra, at 813, 104 S.Ct.,
at 2764.
Unites States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991).
Ventura is an EEOC investigator and his role at the investigative and
processing stage involves a balancing of factors to evaluate the charge
allegations in light of the evidence obtained, which implicates the
discretionary function exception. See Cortez v. EEOC, 585 F. Supp. 2d at
1292. Plaintiff’s first amended complaint challenges the subjective decisions
Ventura made during his interview and his ultimate decision to issue a right
to sue letter instead of initiating a complaint. That conduct involves a matter
of choice or judgment, so is discretionary.
Plaintiff contends that falsifying information on documents related to
his civil rights is not a discretionary function and that Ventura acted at the
operational level, not the policy level. See Dalehite v. United States, 346
U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953). But here, established
governmental policy allows this EEOC employee to exercise discretion, so it
17

is “presumed that the agent’s acts are grounded in policy when exercising
that discretion.” Gaubert, 499 U.S. at 324. The Court does not look into
Ventura’s specific intent when making his decision about Plaintiff’s charge of
discrimination, but instead asks more generally and categorically “whether
the kind of conduct at issue can be based on policy concerns.” Sydnes v.
United States, 523 F.3d 1179, 1185 (10th Cir. 2008). Here, the acts taken
by Ventura in asking questions, making notes, forming a decision on
whether to pursue the charge, and forwarding his decision to the KHRC can
be based on policy concerns, and are discretionary. Because the FTCA’s
discretionary function exception applies to the challenged governmental
conduct, the United States retains its sovereign immunity and the district
court lacks subject matter jurisdiction to hear this claim. Domme v. United
States, 61 F.3d 787, 789 (10th Cir. 1995).
D. Intentional or Mixed Tort Claims
Some of Plaintiff’s claims appear to allege intentional acts, specifically
Ventura falsifying some of the questions and answers in his notes and
influencing the KHRC to agree with the EEOC’s findings. But the FTCA
contains another exception to its waiver of sovereign immunity for “[a]ny
claim arising out of … libel, slander, misrepresentation, [or] deceit ….” 28
U.S.C. § 2680(h). This exception is broad in barring “[a]ny claim arising out
of” the enumerated acts, whether negligent or intentional. A plaintiff may
not recast an intentional tort claim as one for simple negligence to
18

circumvent the bar of § 2680(h). United States v. Shearer, 473 U.S. 52, 55,
105 S.Ct. 3039, 3041–42, 87 L.Ed.2d 38 (1985).
Plaintiff’s allegations that Ventura libeled or defamed him fall squarely
within this exception. See Hobdy v. United States, 762 F.Supp. 1459, 1462 1463 (D.Kan. 1991) (finding claim arose out of conduct which allegedly
involved the communication of false statements so arose out of “libel,
slander, or misrepresentation.”). This court lacks jurisdiction over those
claims.
As to Plaintiff’s claim that Ventura engaged in outrage, Plaintiff has
failed to plausibly allege that Ventura engaged in conduct “so outrageous in
character, and so extreme in degree, as to go beyond the bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
society.” Roberts v. Saylor, 230 Kan. 289, 293, (1981). And as noted above,
Kansas courts are reluctant to extend this cause of action for outrage to
discrimination claims. Accordingly, Plaintiff’s claims against Ventura based
on outrage, defamation, or other intentional conduct shall be dismissed.
E. Constitutional Claims
Plaintiff contends that his “defamation of libel” claim is brought
pursuant to the First Amendment. The FTCA’s exclusive remedy provision
does not apply to a civil action against a government employee which is
brought for a violation of the Constitution of the United States. 28 U.S.C. §
2679(b)(2)(A). But defamation and libel are state intentional tort claims, and
19

nothing in the first amended complaint states a plausible factual basis for a
claim that Ventura violated Plaintiff’s First Amendment rights. Plaintiff fully
exercised his right to speech and petition by filing his EEOC charge, and no
subsequent acts allegedly taken by Ventura prevented, chilled, or infringed
on those rights.
Plaintiff’s first amended complaint additionally alludes to “inadequate
administrative and/or procedural and/or substantive due process
violations…” Dk. 27. p. 10. But no facts are included that state a plausible
claim on any of these counts. Dismissal under Rule 12(b)(6) is thus
necessary.
To the extent Plaintiff’s claim based on intentional acts may be
construed as a Bivens claim against Ventura based on the constitutional
violation, rather than as a common law tort action against the United States
pursuant to the FTCA, it remains subject to dismissal for failure to state a
plausible claim for relief.
The Court finds it unnecessary to address Ventura’s assertion that he
is entitled to qualified immunity.
IT IS THEREFORE ORDERED that Plaintiff’s motion to dismiss
Defendant EC Manufacturing LLC as a party, without prejudice, (Dk. 42) is
denied, and that ECM’s motion to dismiss it for lack of jurisdiction (Dk. 47) is
granted.

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IT IS FURTHER ORDERED that Defendants EEOC and Ventura’s motion
to dismiss (Dk 36) is granted and that Plaintiff’s motion to amend his
complaint (Dk. 41) is denied as moot.
Dated this 24th day of February, 2015, at Topeka, Kansas.

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

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