Stovall v. Brooklyn Barbeque Corporation et al

Filing 31

MEMORANDUM AND ORDER denying 26 Defendant's Motion to Dismiss. Signed by District Judge John W. Lungstrum on 04/27/2018. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Gladys M. Stovall,
Plaintiff,
v.

Case No. 17-cv-2412-JWL

Brykan Legends, LLC,
Defendant.
MEMORANDUM & ORDER
Plaintiff Gladys M. Stovall filed this lawsuit against her former employer alleging sexual
harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq.; disability discrimination in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112 et seq., as amended by the ADA Amendments Act of 2008
(“ADAAA”); workers’ compensation retaliation; and negligent hiring and retention. This matter
is presently before the court on defendant’s motion to dismiss plaintiff’s negligent hiring and
retention claim on the grounds that the claim is barred by the exclusive remedy provision of the
Kansas Workers’ Compensation Act (doc. 26). As will be explained, the motion is denied.1

Standard
Defendant brings its motion under Federal Rule of Civil Procedure 12(b)(1), asserting that
the exclusive remedy doctrine deprives this court of jurisdiction over plaintiff’s negligence claim.

Although defendant has not filed a reply to plaintiff’s response to the motion, the court resolves
the motion to dismiss because the deadline for filing a reply brief has passed.
1

Because the exclusive remedy doctrine is an affirmative defense that does not implicate the court’s
jurisdiction, Radil v. Sanborn Western Camps, Inc., 384 F.3d 1220, 1225 (10th Cir. 2004)
(examining Colorado’s exclusive remedy provision), the court analyzes defendant’s motion under
Federal Rule of Civil Procedure 12(b)(6). The court will grant a motion to dismiss when a
claimant’s factual allegations fail to “state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim need not contain detailed factual
allegations, but a claimant’s obligation to provide the grounds of entitlement to relief requires
more than labels and conclusions; a formulaic recitation of the elements of a cause of action will
not do. See id. at 555. The court must accept the facts alleged in the complaint as true, even if
doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the
claimant, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.

Background
For purposes of defendant’s motion, the court accepts as true the following well-pleaded
facts alleged in plaintiff’s Third Amended Complaint. Plaintiff was employed by defendant at
defendant’s restaurant in Kansas City, Kansas as a dishwasher and busser from March 2016
through June 2016. Plaintiff’s manager and direct supervisor during that time period was Vincent
Martin. Plaintiff alleges that Mr. Martin subjected her at all pertinent times to repeated, unwanted
sexual advances, including promises of promotion and increased wages in exchange for sex. She
alleges that she refused Mr. Martin’s advances and advised him that his conduct was unwelcome,
2

but that Mr. Martin continued to subject her to unwelcome sexually harassing conduct. She further
alleges that Mr. Martin’s conduct became more threatening and more demanding over time and
that she was frightened and concerned for her safety as a result of his conduct. Plaintiff alleges
that she complained about Mr. Martin’s conduct to defendant, that defendant took no corrective
action, and that Mr. Martin, upon learning of plaintiff’s complaints, became enraged and violently
attacked plaintiff. According to plaintiff, she suffered a closed-head injury as a result of the attack
and she continues to suffer injuries as a result of the attack, including migraine headaches, lower
back problems, and injuries to pre-existing conditions. Plaintiff filed a workers’ compensation
claim and sought benefits arising out of the injuries she sustained as a result of the attack. Plaintiff
alleges that Mr. Martin caused her severe emotional distress as a result of not only the physical
attack but also his ongoing harassment of her.
Plaintiff contends that she sought a transfer to another restaurant and other
accommodations but that defendant denied her requests. She asserts that she was terminated
and/or constructively discharged for refusing Mr. Martin’s advances; in retaliation for reporting
Mr. Martin’s unlawful conduct; and/or in retaliation for exercising her workers’ compensation
rights.

Discussion
In its motion, defendant asserts that plaintiff’s negligent retention claim is barred by the
exclusive remedy provision of the Kansas Workers’ Compensation Act (KWCA). The exclusivity
provision provides:

3

Except as provided in the workers compensation act, no employer, or other
employee of such employer, shall be liable for any injury . . . for which
compensation is recoverable under the workers compensation act nor shall an
employer be liable to any third party for any injury or death of an employee which
was caused under circumstances creating a legal liability against a third party and
for which workers compensation is payable by such employer.
Kan. Stat. Ann. § 44–501b(d). The exclusive remedy provision precludes workers who can
recover under the KWCA from bringing a common law negligence action against an employer or
fellow employee. See Herrell v. National Beef Packing Co., 259 P.3d 663, 674 (Kan. 2011)
(quoting Hollingsworth v. Fehrs Equip. Co., 729 P.2d 1214 (Kan. 1986)).
According to defendant, the exclusive remedy for the physical injuries that plaintiff
allegedly sustained as a result of the purported attack by her supervisor lies in the workers’
compensation system. But the essence of plaintiff’s negligent hiring claim goes beyond the
physical injuries alleged by plaintiff as a result of the purported attack. Specifically, plaintiff
alleges that she suffered significant emotional distress as a result of her supervisor’s alleged
repeated sexual advances and sexually charged comments; his alleged direct requests for sex; and
his alleged threats of physical harm. This alleged distress does not relate to the physical injuries
alleged by plaintiff stemming from the attack.

Defendant has not satisfied its burden of

establishing that the exclusive remedy doctrine applies in such circumstances. See Tabares v.
Gates Corp., 2009 WL 151571, *2 (D. Kan. Jan. 21, 2009) (emotional damages not flowing
directly from one’s physical injury are not precluded by the exclusive remedy of the KWCA); see
also Gonzales v. Ultra-Chem, Inc., 2011 WL 5142755, at *4-5 (D. Kan. Oct. 28, 2011) (KWCA
exclusivity provision concerns itself primarily with physical injury; in the context of alleged

4

sexually harassing conduct, damages for mental anguish caused by offensive nature of contact
falls outside scope of exclusivity provision).

IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to
dismiss (doc. 26) is denied.

IT IS SO ORDERED.

Dated this 27th day of April, 2018, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

5