Ruggles v. CVR Energy, Inc. et al
MEMORANDUM AND ORDER granting in part and denying in part 4 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Holly L. Teeter on 7/15/2021. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 2:20-cv-02652-HLT-TJJ
CVR ENERGY, INC, et al.,
MEMORANDUM AND ORDER
Plaintiff asserts claims for sex discrimination and retaliation under Title VII. Defendants
move to dismiss her claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Doc. 4.
Defendant CVR Energy, Inc. (CVR) seeks dismissal of both claims because Plaintiff fails to
plausibly allege that it was Plaintiff’s joint employer. Defendants jointly seek dismissal of
Plaintiff’s retaliation claim for failure to exhaust administrative remedies.
Because Plaintiff’s lone allegation in her operative complaint does not plausibly allege that
Defendant CVR is her joint employer, the Court grants that portion of the motion and dismisses
without prejudice Plaintiff’s claims against Defendant CVR. But the text of Plaintiff’s EEOC
charge clearly sets forth the basis for her retaliation claim, so the Court denies that portion of the
motion. Plaintiff’s remaining claims are sex discrimination and retaliation against Defendant
Coffeyville Resources Refining & Marketing LLC (CRRM).
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Although a court must accept as true well-pleaded allegations and construe them in the
light most favorable to the plaintiff, the same is not true for purely conclusory allegations. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff therefore meets the pleading standard so long as
she offers sufficient factual allegations such that the right to relief is raised above the speculative
level. Twombly, 550 U.S. at 556.
Defendants’ motion raises two discrete issues: (1) whether Plaintiff plausibly alleges that
Defendant CVR was her joint employer, and (2) whether Plaintiff administratively exhausted her
retaliation claim. The Court addresses each below.
Plaintiff fails to plausibly allege that Defendant CVR was her joint employer.
Defendant CVR argues that Plaintiff’s lone allegation in her operative complaint does not
plausibly allege that it was her joint employer. The Court agrees. The Tenth Circuit allows multiple
entities to be held liable as joint employers under Title VII when the entities “co-determine the
essential terms and conditions of employment.” Bristol v. Bd. of Cnty. Comm’rs, 312 F.3d 1213,
1218 (10th Cir. 2002). Relevant factors include whether the entity has the ability to terminate
employment, promulgate work rules and assignments, set conditions of employment (e.g.,
compensation, benefits, hours), provide day-to-day supervision (e.g., discipline), and control
employee records (e.g., payroll, insurance, taxes). Knitter v. Corvias Military Living, LLC, 758
F.3d 1214, 1226 (10th Cir. 2014).
The sole allegation in the operative complaint alleges that “[t]he two CVR Defendants
operate in such a way that both entities appear to have jointly employed Plaintiff, including but
not limited to the use of an employee policy manual branded ‘CVR Energy, Inc.’” Doc. 1 at 2.
Plaintiff does not allege the content of the employee policy manual. And she does not offer any
other factual allegations plausibly suggesting that Defendant CVR had the ability to terminate her
employment or otherwise co-determine the essential terms and conditions of her employment. This
single allegation is not enough to plausibly allege that Defendant CVR is Plaintiff’s joint employer.
See Miller v. Dillon Co., 2016 WL 2894696, at *10 (D. Kan. 2016) (citing cases and dismissing
one defendant because the allegations “provide no facts establishing employer liability under the
Tenth Circuit tests described in Knitter and Bristol”); Johnson v. Hix Corp., 2015 WL 7017374,
at *2 (D. Kan. 2015) (dismissing one defendant because the plaintiff’s complaint “merely recites
the elements required to establish employer liability under Title VII, without providing any
allegations as to [the defendant] controlled [the plaintiff’s] work conditions”).
Plaintiff does not identify any case law suggesting that her operative complaint is
sufficient. Instead, she offers that “[t]he forthcoming amended complaint will include specific
allegations that [Defendant CVR] directed and controlled Plaintiff’s employment as it was the
entity that promulgated the policies and procedures under which Plaintiff labored.” Doc. 11 at 2.
She then outlines the additional factual allegations. To date, Plaintiff has not filed an amended
complaint or even a motion for leave to amend. She provides no explanation for this delay. And
the scheduling order set July 9, 2021, as the deadline for amending pleadings. Doc. 14 at 9.
Defendants’ motion was ripe well before that date. Thus, the Court’s analysis is limited to the
operative complaint and that complaint does not plausibly allege joint-employer liability. The
Court therefore dismisses without prejudice Plaintiff’s claims against Defendant CVR.1
Plaintiff makes a passing request at the conclusion of her response that the Court grant her leave to amend to
include her additional factual allegations. The Court does not grant this relief. The federal and local rules outline
the procedure for seeking leave to amend and that procedure does not include a request in a response. Fed. R. Civ.
P. 15; D. Kan. Rule 15.1. Plaintiff is represented and her counsel should be aware of these rules. The Court will
not reward her for ignoring the procedures of this District by sua sponte granting leave to amend. To do otherwise,
essentially renders the district court her legal advisor, promotes a “wait and see” approach for dispositive-motion
practice, and converts the motion to dismiss into a trial run and an advisory opinion.
Plaintiff administratively exhausted her retaliation claim.
Defendant CRRM moves to dismiss Plaintiff’s retaliation claim because she failed to
exhaust her administrative remedies. It contends that Plaintiff did not check the retaliation box on
her EECO charge and that her narrative does not set forth the basis for her retaliation claim. The
The Tenth Circuit recently explained that exhaustion of administrative remedies is an
affirmative defense that is considered under the Rule 12(b)(6) standard. Lincoln v. BNSF Ry. Co.,
900 F.3d 1166, 1183 (10th Cir. 2018). A plaintiff must exhaust each incident of discriminatory or
retaliatory treatment, which means that the EEOC charge must contain facts underlying each claim.
Brown v. Keystone Learning Servs, 804 F. App’x 873, 882 (10th Cir. 2020). This means:
[A] plaintiff’s claim in federal court is generally limited by the scope
of administrative investigation that can reasonably be expected to
follow the charge of discrimination submitted to the EEOC. Charges
filed with the EEOC are liberally construed to determine whether
administrative remedies have been exhausted as to a particular
claim. The failure to mark a particular box [on an EEO charge]
creates a presumption that the charging party is not asserting claims
represented by that box. The presumption may be rebutted, however,
if the text of the charge clearly sets forth the basis of the claim.
Khalifah v. Brennan, 2020 WL 1028299, at *4 (D. Kan. 2020) (alterations in original) (internal
citations and quotations omitted).
Plaintiff did not check the box for retaliation, so the issue is whether the text of her charge
clearly set forth the basis for her claim.2 The text of her charge states:
I was hired on June 17, 2019, as an Operator. I went through a twomonth orientation. Prior to going to the unit, I received outstanding
remarks on all my evaluations. In August 2019, I went to the unit
that I was assigned to work as an operator. When I began working
on the unit, I noticed certain comments that were made by my male
The Court considers Plaintiff’s EEOC charge in resolving this motion. The document is mentioned in the
complaint, is central to her claims, and is unchallenged insofar as authenticity is concerned. Waller v. City &
Cnty. Of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019).
co-workers such as, “Shouldn’t you be home doing the dishes or
making cookies.” When I had a question about certain job duties, I
would attempt to ask the more seasoned operators. After I asked the
question, the seasoned operators would look at me and not respond.
I asked one of the seasoned operators where acid was coming from
in a generator. The seasoned operator did not respond. One of my
similarly situated co-workers asked the same question to the same
seasoned operation [sic] who stated, “Let’s go check it out.” I was
also asked to sign off on equipment showing that I was certified to
operate without receiving the proper training. I was also told while
working I would never be left alone. I was left alone to unload a
railcar. On one occasion, me and a similarly situated co-worker were
assigned to work unloading a railcar. The seasoned operator stated
to the male co-worker, “This is something that you need to know
about unloading railcars.” I was also there, but he never addressed
me, nor did he tell me the same thing he told the male co-worker.
On or around October 3, 2019, I received an evaluation. The
evaluation was the worst I received. On the same day, I complained
to human resources about the treatment I received because of my
sex and requested to be transferred to another unit. I was not
transferred and the human resources employee acted as though she
did not believe me. On the same day, I resigned.
I believe I was harassed, treated differently in the terms and
conditions of my employment and forced to resign because of my
sex, female, in violation of Title VII of the Civil Rights Act of 1964,
Doc. 5-1 at 2-3 (emphasis added).
Plaintiff’s charge clearly set forth the basis for her retaliation claim. Her charge states that
she complained to human resources about the treatment she received because of her sex, that her
request to be transferred was denied and her complaint was received with disbelief, and that she
resigned the same day. Id. Her opposition confirms that her “charge lays out exactly the scope of
her retaliation claim.” Doc. 11 at 5 (emphasis added). Based on the text of her narrative and the
stated scope of her claim, the Court agrees that the reasonable and likely scope of the EEOC
investigation would have included an investigation into the facts of her encounter with human
resources and a retaliation claim stemming from this limited interaction.3 See, e.g., Patterson v.
Kalmar Sols. LLC, 2020 WL 2735743, at *4 (D. Kan. 2020) (denying motion to dismiss for failure
to exhaust because the narrative sufficiently charges retaliation); Miller, 2016 WL 2894696, at *89 (denying motion to dismiss retaliation claim because the EEOC charge provided sufficient
information to rebut the presumption). The Court denies this portion of the motion.4 Plaintiff’s
sex-discrimination and retaliation claims against Defendant CRRM survive this motion.
THE COURT THEREFORE ORDERS that Defendants’ motion (Doc. 4) is GRANTED
IN PART and DENIED IN PART. The Court dismisses without prejudice Plaintiff’s sexdiscrimination and retaliation claims against Defendant CVR Energy, Inc. The Court denies the
rest of the motion.
IT IS SO ORDERED.
Dated: July 15, 2021
/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE
Plaintiff’s retaliation claim seems to replicate her sex-discrimination claim. But alternative theories of liability
are allowed at this stage of the litigation. In addition, the Court makes no ruling on whether any specific action
constitutes as adverse employment action because that is not an issue that has been briefed or argued by the
The Court notes that her complaint states that “Plaintiff complained about the illegal discrimination and
harassment and was subject to retaliation in the form of a lack of action and a poor evaluation, leading to her
constructive discharge from employment.” Doc. 1 at 8. Her EEOC charge does not identify any complaint until
the day she complained to human resources, which was after she received her evaluation. The Court relies on
Plaintiff’s statement in her response about the scope of her claim. If the scope of her claim is different, the Court
makes no ruling on that issue.
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