Fuller v. State of Kansas, Department of Children & Families
Filing
70
MEMORANDUM AND ORDER granting in part and denying in part 55 Motion to Dismiss. IT IS FURTHER ORDERED THAT plaintiff show cause, in writing, by September 27, 2018 why the court should not dismiss the claims against the individual defendants for failure to prosecute. Signed by District Judge Daniel D. Crabtree on 9/13/2018. Mailed to pro se party Clara R. Fuller by regular mail. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLARA R. FULLER,
Plaintiff,
v.
Case No. 16-2415-DDC-JPO
STATE OF KANSAS, DEPARTMENT
OF CHILDREN & FAMILIES, et al.,
Defendants.
____________________________________
MEMORANDUM AND ORDER
This latest motion represents defendants’ fourth motion asking the court to dismiss the
case before discovery even begins. It’s what Yogi Berra1 meant with this classic Yogi-ism, “It’s
like déjà vu all over again.”
Plaintiff Clara R. Fuller alleges that defendant, the Kansas Department of Children and
Families (“DCF”), discriminated against her because of her race, gender, and age, acting through
defendants Stephanie Henderson, Lewis Kimsey, Lisa Locke, and Sandra Kimmons
(collectively, the “DCF employees”). The defendants did so, plaintiff asserts, both when DCF
hired her and it fired her. Plaintiff, proceeding pro se, has filed an Amended Complaint (Doc.
33) asserting claims under Title VII, the Age Discrimination in Employment Act (“ADEA”), and
42 U.S.C. § 1983. She sues the DCF employees in their official and individual capacities. The
Amended Complaint does not name DCF explicitly as a defendant. But the court already has
ruled that any suit brought against the DCF employees in their official capacity is a suit against
DCF. Doc. 36 at 3. See also Bell v. City of Topeka, Kan., No. 06-4026-JAR, 2007 WL 628188,
1
Catcher, New York Yankees (1946–1963), and Manager, New York Yankees (1964, 1984–1985)
at *3 (D. Kan. Feb. 26, 2007) (“Official capacity suits are treated in all respects as suits against
the underlying entity.”).
This matter comes before the court on defendants’ Motion to Dismiss (Doc. 55). They
argue that the court should dismiss the case under Rule 12(b)(6) because the Complaint fails to
state a claim for relief.
I.
Facts
The court takes the following facts from plaintiff’s Amended Complaint (Doc. 33) and
construes them in the light most favorable to her. Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). And because plaintiff proceeds pro se,
the court construes her pleadings liberally. Ghailani v. Sessions, 859 F.3d 1295, 1303 (10th Cir.
2017).
This case revolves around plaintiff’s employment with the Low Income Energy
Assistance Program (“LIEAP”), which DCF oversees. DCF receives funding from the federal
government under LIEAP to help low-income families pay their home energy costs. Plaintiff
first worked for LIEAP from January 2014 to May 2014. The Complaint never explains why
plaintiff stopped working for LIEAP in 2014. But sometime in 2015, plaintiff reapplied to
LIEAP for a temporary job. When Mr. Kimsey2 interviewed her in 2015, he required plaintiff to
produce a written performance evaluation from a previous employer even though Mr. Kimsey
never had required any other applicant to produce such an evaluation. Plaintiff asked if she
could use Veronica Knight—plaintiff’s previous supervisor at LIEAP—as a reference. Mr.
Kimsey would not allow it. Plaintiff eventually produced a recommendation from a different
employer, but Mr. Kimsey hired plaintiff only after consulting with his superior at DCF, Ms.
Kimmons. This was something Mr. Kimsey never had done with any other job applicant. Most
2
The Complaint is not clear about Mr. Kimsey’s exact role within DCF.
2
of DCF’s new hires were white, and younger than plaintiff. On January 4, 2016, plaintiff began
her second stint as LIEAP’s employee.
In that job, plaintiff processed applications from families seeking funding from LIEAP.
In daily meetings, Ms. Henderson—plaintiff’s direct supervisor—told her that LIEAP had a daily
quota for the number of applications it must process. Ms. Henderson did not require plaintiff or
any other employee to process a certain number of applications each day, however.
Two weeks after plaintiff finished her training and began processing applications, Ms.
Henderson recommended to Mr. Kimsey and Ms. Kimmons that they terminate plaintiff’s
employment because, according to Ms. Henderson, plaintiff’s work was subpar. But other
LIEAP employees processed fewer applications than plaintiff yet no evidence exists that DCF
terminated those employees’ employment. And LIEAP, on an agency-wide basis, was not
meeting its daily application quota. Mr. Kimsey and Ms. Kimmons conferred and agreed to
terminate plaintiff’s employment even though they had no knowledge about her work
performance. In February 2016, Ms. Henderson called plaintiff and told her to come to the
personnel department. When plaintiff asked why Ms. Henderson wanted her to come there, Ms.
Henderson replied that she had no idea. But, in reality, Ms. Henderson knew exactly what was
going to happen once plaintiff arrived at the personnel department. When plaintiff arrived there,
Ms. Locke3 terminated plaintiff’s employment by handing her a letter signed by Ms. Kimmons.
Mr. Kimsey later claimed that DCF terminated her employment because of her subpar work
performance.
3
The Complaint does not provide Ms. Locke’s job title.
3
II.
Legal Standard
On a motion to dismiss for failure to state a claim, the court accepts all facts pleaded by
the non-moving party as true and draws any reasonable inferences in favor of the non-moving
party. Brokers’ Choice of Am., 757 F.3d at 1136. “To survive a motion to dismiss [under Rule
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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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,
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) (emphasis in original)).
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 has explained, simply “will not do.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). This is so because the court need not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 557 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation omitted)).
When construing a pro se plaintiff’s pleadings, the court must hold them “to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). This means “if the court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite
4
proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence
construction, or [her] unfamiliarity with pleading requirements.” Id.
III.
Discussion
Before it turns to defendants’ substantive arguments, the court clarifies two important
points. First, as the court explained in an earlier Memorandum and Order, all claims asserted
against the DCF employees in their official capacity are claims against DCF. Doc. 36 at 3 (citing
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).4 Hoping it will clarify the court’s
work analyzing a confusing and overgrown set of allegations, this Order refers to the defendants
sued on plaintiff’s official capacity claims as the “DCF officials.” And it refers to the defendants
sued on plaintiff’s individual capacity claims as the “individual defendants.”
Second, apprehending the legal theory invoked by the Amended Complaint isn’t
particularly easy. It identifies three discrete claims identified as Count I, Count II, and Count III.
Count I asserts plaintiff “was discriminated against due to race, age and gender” but it never
alleges a particular practice that is discriminatory. The closest it comes is alleging that most new
hires were young and white. Doc. 33 at 3. Count II alleges, “[Plaintiff] was discriminated
against during the hiring process” when Mr. Kimsey required plaintiff to secure a written
evaluation from a previous employer of hers even though he never required from any other job
applicant to provide such an evaluation. Id. at 3–4. Count III contends that plaintiff was
“unfairly terminated” because the DCF officials terminated her for her allegedly poor work
performance even though other young, white employees performed more poorly.
Given these allegations, the court construes the Complaint to invoke two legal theories
for her claims against the DCF officials: the ADEA and Title VII. And the court construes the
4
As the Supreme Court explained in Will, “Obviously, state officials literally are persons. But a suit against
a state official in his or her official capacity is a suit against the official’s office . . . . As such, it is no different from
a suit against the State itself.” 491 U.S. at 71 (citations omitted).
5
Complaint to assert two distinct ADEA and Title VII violations. First, the Complaint alleges that
the DCF officials unlawfully discriminated against plaintiff when they hired her. And second,
the Complaint asserts that the DCF officials violated the ADEA and Title VII when they fired
her.
The Complaint also invokes 42 U.S.C. § 1983 as a basis of jurisdiction because it alleges
that plaintiff’s “constitutional rights, privileges or immunities have been violated . . . .” Id. at 2.5
The court construes the Complaint to assert the § 1983 claim against the individual defendants
because plaintiff cannot sue the DCF officials under § 1983. See Will, 491 U.S. at 71 (holding
that a plaintiff cannot sue a state official in his or her official capacity under § 1983 because
sovereign immunity protects state officials in their official capacity).6
The DCF officials argue that plaintiff never alleges facts that, if true, could entitle her to
relief under ADEA and Title VII. They contend that the Complaint fails to state a Title VII
claim because plaintiff alleges no facts that could support liability under Title VII. And, the
DCF officials argue, the court should dismiss the Complaint’s claims under the ADEA because
sovereign immunity protects them from those claims. The court discusses the DCF officials’
arguments in the next two subsections, below.
5
Defendants argue that plaintiff has abandoned this claim because she does not cite 42 U.S.C. § 1983
specifically in her Complaint. If a lawyer drafted this Complaint, the court might agree; but plaintiff proceeds pro se
and she need not cite legal authority with specificity. See Hall, 935 F.2d at 1110 (“[I]f the court can reasonably read
[a pro se plaintiff’s] pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, [her] confusion of various legal theories, . . . or [her] unfamiliarity
with pleading requirements.” (emphasis added)).
6
Plaintiff cannot assert a claim against the individual defendants for violating Title VII and ADEA because
neither provision allows for individual liability. See Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 744 (10th
Cir. 1999) (explaining that ADEA and Title VII define “employer” identically and concluding that both “preclude[]
personal capacity suits against individuals who do not otherwise qualify as employers under the statutory
definition”).
6
A.
Title VII
Title VII prohibits an employer from discriminating against anyone because of that
person’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To state a
Title VII discrimination claim sufficiently, plaintiff must establish that “(1) she is a member of a
protected class, (2) she suffered an adverse employment action, (3) she qualified for the position
at issue, and (4) she was treated less favorably than others not in the protected class.” Khalik v.
United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Plaintiff need not establish these
elements to survive a Rule 12(b)(6) motion. Id. at 1193. She only needs to allege facts that, if
true, plausibly allow a factfinder to conclude that the DCF officials violated Title VII. Id.
Khalik provides helpful guidance for evaluating the present motion. There, the
Complaint alleged that defendant had terminated the plaintiff’s employment because she was
Arab-American, Muslim, and born in Kuwait. Id. at 1189. The Complaint claimed that this
amounted to unlawful discrimination in violation of Title VII. Id. at 1190. Defendant moved to
dismiss the case under Rule 12(b)(6), arguing that the Complaint failed to allege a Title VII
claim sufficiently. Id. The district court granted defendant’s motion, and plaintiff appealed. Id.
The Tenth Circuit affirmed. Id. at 1194. The Circuit noted that the only factual
allegations in the Complaint alleged that (1) plaintiff was an Arab-American who was born in
Kuwait, (2) she was a practicing Muslim, (3) she performed her job well, and (4) defendant
terminated her employment. Id. at 1193–94. Importantly, the Complaint never alleged any facts
about similarly situated employees who defendant treated differently. Id. at 1194. The Circuit
explained that this shortcoming was fatal to her Complaint because plaintiff should know, before
discovery, begins how defendant treated her differently than similarly situated employees. Id.
7
Using Khalik as a guide, the court turns to the DCF officials’ arguments about this
Complaint. The DCF officials argue that the Complaint fails to state a Title VII violation for the
discriminatory hiring process because, after all, the same Complaint also alleges that the DCF
officials hired plaintiff. This allegation, the DCF officials argue, precludes plaintiff from
establishing the second element in a Title VII discrimination case—that plaintiff suffered an
adverse employment action. Indeed, an adverse employment action under Title VII requires
evidence that defendant refused to hire plaintiff, or otherwise caused some “significant” change
in her employment status. Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 635 (10th Cir.
2012). A mere inconvenience will not meet this standard. Hiatt v. Colo. Seminary, 858 F.3d
1307, 1316 (10th Cir. 2017). Here, the Complaint alleges that the DCF officials required
plaintiff to secure a written evaluation from a former employer before they hired her. But, the
Complaint continues, they hired her once she produced this evaluation. The Complaint alleges
no facts, if proved true, could permit a finding that having to secure this evaluation affected her
job benefits or future employment opportunities. See Hillig v. Rumsfeld, 381 F.3d 1028, 1033
(10th Cir. 2004) (holding that employment actions having a minimal effect on employee’s
employment do not constitute an adverse action under Title VII). The court grants the DCF
officials’ motion against the claim that DCF officials discriminated against her in the hiring
process.
Next, the DCF officials argue that the Complaint fails to state a plausible Title VII claim
based on plaintiff’s termination from her employment because the Complaint alleges no facts
about similarly situated employees. Doc. 56 at 13. But unlike Khalik, the Complaint alleges that
other employees processed fewer applications than plaintiff and yet the DCF officials never
terminated their employment. 671 F.3d at 1194 (affirming the dismissal of a Complaint under
8
Rule 12(b)(6) where “[t]here [were] no allegations of similarly situated employees who were
treated differently”). While this allegation never claims that these lower performing employees
are white, construing the Complaint to assert as much is consistent with the liberal construction
of pro se pleadings required by circuit precedent. Ghailani, 859 F.3d at 1303. After all, the
Complaint alleges that the LIEAP had but a few black employees. And if plaintiff adduces
evidence that other white employees processed fewer applications than plaintiff yet still retained
their jobs, a reasonable jury could conclude that the DCF officials treated similarly situated
employees differently than plaintiff on account of race. The Complaint thus states a Title VII
claim based on termination of plaintiff’s employment.
B.
ADEA
The DCF officials argue that plaintiff cannot assert an ADEA claim against them because
sovereign immunity protects them from a suit on this theory. A plaintiff cannot sue state
officials in their official capacity unless either Congress abrogated their immunity or they have
consented to suit. Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir. 2006). Here, nothing in ADEA
abrogated the states’ sovereign immunity, or that of state officials sued in their official capacity.
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (“We hold . . . that, in the ADEA, Congress
did not validly abrogate the States’ sovereign immunity to suits by private individuals.”).7 And
plaintiff has alleged no facts capable of supporting a conclusion that the DCF officials or Kansas
has consented to this suit. So, sovereign immunity bars any suit against the DCF officials under
the ADEA. The court thus dismisses the ADEA official capacity suit.
7
In contrast, Congress validly abrogated the states’ sovereign immunity when it passed Title VII.
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
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IV.
Claims Against the Individual Defendants
Finally, the court addresses an issue that neither side raised. As explained above, the
Complaint asserts a claim against the individual defendants under § 1983. Previously, these
defendants argued that plaintiff never served them properly. See Doc. 42 at 6. The court agreed,
and instructed plaintiff to provide the Clerk of the Court with the requisite information to serve
the individual defendants properly. Doc. 47 at 5. Specifically, the court explained that plaintiff
could serve the individual defendants properly either by (1) providing the Clerk with the
addresses of the individual defendants or (2) filing an affidavit providing that she does not know
where the individual defendants reside but believes they work in Kansas. Id. If plaintiff chooses
the latter option, the Marshals Service could serve the individual defendants at their place of
employment. Id. (citing Kan. Stat. Ann. § 60-304(a)). To date, it appears plaintiff has not
provided the Clerk with any of the relevant information because the Clerk has issued no
summons for the individual defendants.
A court, on its own motion, may dismiss an action for plaintiff’s failure to prosecute.
McCoy v. Wyoming, 683 F. App’x 662, 666–67 (10th Cir. 2017). Here, the court directed
plaintiff to provide the Clerk with information needed to serve the individual defendants on
March 21, 2018—four months ago. Yet, plaintiff still has not provided this information. The
court thus directs plaintiff to show cause, in writing, by September 27, 2018 why it should not
dismiss the claims against the individual defendants for failure to prosecute.
V.
Conclusion
For reasons discussed above, the court grants defendants’ Motion to Dismiss (Doc. 55) in
part and denies it in part. The court grants defendants’ motion to dismiss the Complaint’s ADEA
claim and the portion of the Title VII claim that relies on DCF officials’ conduct during the
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hiring process. But the Complaint’s Title VII claim relying on the DCF officials’ termination of
plaintiff’s employment states a plausible claim for relief.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion to
Dismiss (Doc. 55) is granted in part and denied in part, as explained in this Order.
IT IS FURTHER ORDERED THAT plaintiff show cause, in writing, by September
27, 2018 why the court should not dismiss the claims against the individual defendants for failure
to prosecute.
IT IS SO ORDERED.
Dated this 13th day of September, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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