Nguyen v. Kansas City Board of Public Utilities
MEMORANDUM AND ORDER granting in part and denying in part 12 Motion for Judgment. The motion is granted to the extent Plaintiff asserts a claim for liability based on the 2012 demotion, to the extent he seeks relief under § 1981 for national origin discrimination, and to the extent he seeks punitive damages. The motion is otherwise denied. Signed by Chief District Judge Julie A Robinson on 5/15/2017. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-2654-JAR
UNIFIED GOVERNMENT OF WYANDOTTE
COUNTY/KANSAS CITY, KANSAS,
MEMORANDUM AND ORDER
Plaintiff Hoang Nguyen brings this action against his employer the Unified Government
of Wyandotte County/Kansas City, Kansas (“Unified Government”), alleging discrimination and
retaliation on the basis of race and national origin under Title VII of the Civil Rights Act of
1964, and 42 U.S.C. § 1981. Before the Court is Defendant’s Motion for Judgment on the
Pleadings (Doc. 12). The motion is fully briefed and the Court is prepared to rule. As described
more fully below, Defendant’s motion is granted in part and denied in part.
The standard for a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is
the same as that applied to a motion to dismiss for failure to state a claim under Fed. R. Civ. P.
12(b)(6).1 The court must accept all facts pleaded by the non-moving party as true and grants all
reasonable inferences from the pleadings in favor of the non-moving party.2 A motion for
judgment on the pleadings should not be granted unless the movant has clearly established that
there are no material facts to be resolved and that the movant is entitled to judgment as a matter
Colony Ins. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012).
of law.3 The court does not accept as true legal conclusions that are couched as factual
allegations,4 but rather determines whether the factual allegations “plausibly give rise to an
entitlement to relief.”5 To avoid dismissal, a plaintiff must state a plausible claim, which
requires “sufficient factual allegations to ‘raise a right to relief above the speculative level.’”6
First Amended Complaint
The First Amended Complaint was filed on January 31, 2017, changing only the identity
of the Defendant. Therefore, even though Defendant’s motion for judgment on the pleadings
was filed before the First Amended Complaint, the parties agree it applies equally to the
amended pleading. The following facts are alleged in the First Amended Complaint and are
accepted as true for purposes of this motion.
Plaintiff Hoang Nguyen is an Asian male born in Vietnam. He has been employed by the
Kansas City Board of Public Utilities (“KCBPU”) since May 2003. Initially hired as a Plant
Engineer, Plaintiff was promoted to Director of Electrical Power Operations in 2011. While in
that position, Plaintiff received positive performance evaluations. In his last performance
evaluation relating to that position, Plaintiff was given ratings of either “high quality” or
“exceptional” in every aspect of his performance. Mr. Nguyen’s primary supervisor while he
was in that position also gave him extremely positive reviews.
In October 2012, after Plaintiff had been in the position for nearly two years, Don Gray,
KCBPU’s General Manager, demoted Mr. Nguyen from the position. Mr. Gray initially offered
no reason for the demotion, but he replaced Mr. Nguyen with a white male of U.S. origin. On
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.Corp. v. Twombly, 550 U.S. 544, 555
Id. at 679.
March 14, 2013, Plaintiff met with his supervisor and personnel from KCBPU’s Human
Relations Department, who indicated that there was no performance-based reason for the
demotion, but that Mr. Gray, as General Manager, had the authority to implement the demotion.
On March 15, 2013, Plaintiff filed an internal HR complaint alleging that his demotion
constituted discrimination based on race and national origin.
In April 2014, the employee who had replaced Plaintiff in his position as Director of
Electric Production Operations retired, and Plaintiff re-applied for the position. Plaintiff was
well qualified for the position, not only because he had experience in that position, but because
he exceeded the objective criteria set forth in the position posting. In October 2014, Plaintiff
received a letter from Human Resources denying the requested promotion. KCBPU instead
hired a white male of U.S. origin who was less qualified. Plaintiff had superior experience with
KCBPU in all of KCBPU’s plants, superior experience in the categories of experience identified
as minimal requirements, and superior educational qualifications.
After being denied the promotion, Plaintiff spoke with his supervisor, Dong Quach, about
why he did not receive the promotion. Mr. Quach stated that Mr. Gray would not approve
Plaintiff for the position. Defendant later took the position that Plaintiff was denied the
promotion because his performance was unsatisfactory.
Plaintiff’s First Amended Complaint alleges two counts: (1) discrimination on the basis
of race and national origin; and (2) retaliatory nonselection. In both counts, Plaintiff asserts he is
entitled to recover under 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981. Defendant moves for
judgment on the pleadings on four grounds: (1) Plaintiff’s claim that he was unlawfully demoted
in 2012 is time-barred; (2) any claim of discrimination or retaliation based on national origin
under 42 U.S.C. § 1981 must be dismissed because the statute does not cover discrimination on
the basis of national origin; (3) Plaintiff cannot recover punitive damages against Defendant
because it is a municipality; and (4) Plaintiffs’ factual allegations are insufficient to state a
plausible claim for relief under either Title VII or § 1981.
In response to the motion, Plaintiff concedes most of these issues. He clarifies that he
does not assert claims based on the 2012 demotion, his national origin claims arise under Title
VII only, and he does not seek punitive damages. Given these concessions, Defendant’s motion
is granted to the extent Plaintiff asserts a claim of liability based on the 2012 demotion as an
adverse employment action, relief under § 1981 for national origin discrimination, and punitive
damages. The Court proceeds to consider whether Plaintiff has otherwise alleged sufficient facts
to state a plausible claim for relief. The Court also addresses Defendant’s request in the reply
that Plaintiff “be precluded from referencing or relying upon the alleged 2012 demotion and
upon any other allegations that were not timely asserted in his Charge in a belated attempt to
support the claims contained in the Amended Complaint.”
To establish a prima facie case of failure-to-promote under either Title VII or 42 U.S.C.
§ 1981, Plaintiff must show that (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 or remained available.7 Defendants move to dismiss this claim
on the basis that Plaintiff’s allegations of causation are conclusory, and because he conflates the
alleged discrimination on the basis of national origin and race. Defendant first argues that the
factual allegations are insufficient to demonstrate that Mr. Gray demoted Plaintiff on the basis of
Paris v. S.W. Bell Tele. Co., 94 F. App’x 810, 812 (10th Cir. 2004).
his race or national origin. The Court agrees with Plaintiff that Count I clearly asserts a claim
that Defendant’s decision not to promote him in 2014 was discriminatory; therefore Defendant’s
argument that he failed to allege that the 2012 demotion decision was based on race or national
origin is a moot point. Moreover, given that the Court has now granted Defendant’s motion to
dismiss the § 1981 claim to the extent it alleges discrimination or retaliation on the basis of
national origin, Defendant’s argument that the discrimination allegations are conflated is a moot
In Khalik v. United Air Lines,8 the Tenth Circuit provided an extensive analysis of the
pleading standard for employment discrimination and retaliation claims under Twombly.9 The
court was careful to note that under Twombly, the plaintiff is not required to “set forth a prima
facie case for each element” to successfully plead a claim of discrimination.10 Instead, he is only
required to “set forth plausible claims.”11 The Khalik court provided a list of facts an
employment discrimination plaintiff could reasonably be expected to know and allege to satisfy
the plausibility requirement of Twombly.12 Such facts could include the inconsistencies given for
the adverse employment decision, when the complaint at issue was filed, the context of the
employment decision, or any other reasons the plaintiff believes discrimination or retaliation
formed the basis of the decision.13
This Court easily finds that Plaintiff has plausibly alleged a claim of discrimination on a
failure-to-promote theory. Although he is not required to set forth plausible facts for each
671 F.3d 1188 (10th Cir. 2012).
Id. at 1193–94.
Id. at 1194.
element of his prima facie case, Plaintiff has done so in his First Amended Complaint. Plaintiff
alleges facts to support his membership in a protected class based on his race and national origin.
He alleges that he suffered an adverse employment action when he was passed over for a
promotion. Plaintiff alleges detailed facts about his qualification for the promotion. And finally,
Plaintiff alleges that he was passed over for the promotion in favor of a similarly situated
individual who was white, American-born, and less qualified for the position. Plaintiff also
alleges that the reasons given to him for not being selected for the promotion are not credible,
inferring that they are a pretext for discrimination. These are sufficient facts under Twombly to
establish plausible claims of relief for race discrimination under Title VII and 42 U.S.C. § 1981,
and for and national origin discrimination under Title VII.
In Count II, Plaintiff claims he was not selected for the promotion to Director of
Electrical Power Operations in retaliation for his 2013 written complaint of discrimination. The
elements of a prima facie claim of retaliation under Title VII and § 1981 are: (1) the employee
engaged in protected opposition to discrimination; (2) the employee suffered an adverse
employment action during or after his protected opposition that a reasonable employee would
have found materially adverse; and (3) a causal connection exists between the protected activity
and the materially adverse action.14 The Supreme Court has recently clarified that a Title VII
plaintiff asserting a claim of retaliation must show that his protected activity was the but-for
cause of the alleged adverse employment action.15
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1201–02 (10th Cir. 2008); McGowan v. City of Eufala,
472 F.3d 736, 741 (10th Cir. 2006); see CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (holding that §
1981 encompasses claims of retaliation).
Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
Defendant urges dismissal because Plaintiff’s statement that the Unified Government
hired a white male of U.S. origin instead of Plaintiff in 2014 is wholly conclusory and contains
no “underlying factual support.” But Plaintiff need not at the pleading stage come forward with
evidence to support this assertion.16 The Court assumes to be true the factual assertions in
Plaintiff’s First Amended Complaint.17 Defendant also argues that Plaintiff’s allegations of
causation are insufficient. But Plaintiff alleges that despite having strong performance
evaluations and experience, he was passed over for a promotion in favor of a similarly situated
white U.S.-born individual who was less qualified for the position. These are sufficient facts to
state a plausible claim for relief.
References to 2012 Demotion
Defendant asks the Court to preclude Plaintiff from “referencing or relying upon the
alleged 2012 demotion and any other alleged acts of discrimination or retaliation arising out of
the same that were not timely raised in his Charge.” This request is denied. First, as Plaintiff
makes clear in both the First Amended Complaint and his response brief, his claims of liability in
this case are not based on the 2012 demotion. Therefore, Plaintiff’s reliance on Judge Marten’s
decision in Seifert v. Unified Government of Wyandotte County/Kansas City, Kansas18 is
misplaced. In Seifert, Judge Marten dismissed the plaintiff’s civil rights claims for damages that
incurred more than two years before the case was filed.19 That case also involved a conspiracy
claim under 42 U.S.C. § 1985(3), and a claim for municipal liability. Judge Marten found that
those claims must be based on overt acts, or Sheriff’s Department policy, that occurred during
Fed. R. Civ. P. 12(d).
Defendant also argue
No. 11-2327-JTM, 2012 WL 2448932, at *4–5 (D. Kan. June 26, 2012).
Id at *7.
the limitations period. Here, Plaintiff makes no claim that his 2012 demotion can provide a basis
for damages, and there is no claim of Monnell liability or conspiracy.
More importantly, however, Defendant’s request to preclude reference to this 2012
demotion is contrary to the guidance provided by Judges Humphreys and Marten in the Seifert
case. Although the plaintiff in Seifert could not subject the Unified Government to liability for
acts of harassment or retaliation that occurred before the limitations period, both judges
explained that the history of related conduct by the Unified Government, or other facts from
before the statute-of-limitations period, could be relevant to the actionable claims that remain.20
Similarly, here, the facts surrounding Plaintiff’s demotion are likely relevant to his failure to
promote claims. Indeed, Plaintiff’s alleged protected activity on the retaliation claim is his
internal complaint about his demotion.21 The Court declines to strike or preclude Plaintiff from
referencing such facts, particularly in the context of a motion to for judgment on the pleadings.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Judgment on the Pleadings (Doc. 12) is granted in part and denied in part. The motion is
granted to the extent Plaintiff asserts a claim for liability based on the 2012 demotion, to the
extent he seeks relief under § 1981 for national origin discrimination, and to the extent he seeks
punitive damages. The motion is otherwise denied.
IT IS SO ORDERED.
Dated: May 15, 2017
Id. at *5 (“To the contrary, it is possible and even likely that there would still be relevant and discoverable
information from Seifert’s time at the police department that would bear on issues of intent, motive, and the alleged
conspiracy. . . . [T]he more proper means of doing that is in the context of a motion to compel . . . .”) (quoting
Judge Humphreys’ Order denying the defendant’s motion to stay)); *7 (“This is not to say that the history of the
Bowling investigation is irrelevant or inadmissible, and the court finds no grounds for disagreement with the
Magistrate Judge’s decision not to restrict discovery at the present time.”).
Defendant argues in the reply that this complaint did not allege discrimination, attaching a copy of the
complaint to its brief. Of course, the Court does not consider matters outside the pleadings on a motion for
judgment on the pleadings. Fed. R. Civ. P. 12(d).
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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