Hwang v. Kansas, State of et al
Filing
38
MEMORANDUM AND ORDER denying as moot 7 Motion to Dismiss; granting 21 Motion to Dismiss. Signed by District Judge Eric F. Melgren on 2/28/2013. (alm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GRACE HWANG,
Plaintiff,
v.
Case No. 11-4185-EFM
KANSAS STATE UNIVERSITY,
Defendant.
MEMORANDUM AND ORDER
Defendant Kansas State University brings this motion to dismiss Plaintiff Grace Hwang’s
lawsuit alleging violations of the Rehabilitation Act of 1973.1
Hwang argues that KSU
discriminated against her by forcing her to resign following a bone marrow transplant and then
retaliated against her when she filed a grievance claim. KSU moves to dismiss the amended
complaint on the grounds that Hwang failed to state a claim upon which relief can be granted.
Although the Court is sympathetic to Hwang’s misfortunes, the Court finds that she has failed to
allege sufficient facts to maintain any of her claims against KSU and, therefore, grants the
motion to dismiss.
1
29 U.S.C. § 794 et seq.
I.
Factual and Procedural Background
Plaintiff Grace Hwang was employed as a professor at Defendant Kansas State
University from 1994 until February 2010. Hwang was a Fulbright Scholar who graduated from
KSU and also received a graduate degree at Tufts University and a law degree from Georgetown
University Law Center. In the fall of 1994, Hwang began serving as an adjunct professor in
KSU’s MBA program. In 2005, she was elevated to an assistant professor in KSU’s School of
Leadership Studies. Hwang was employed through a year-to-year contract, although she alleges
that it was the policy and practice of KSU to renew such contracts as a matter of course, absent
reason to discharge the employee for cause. Hwang asserts that, while employed at KSU, she
continuously received praise and positive evaluations from her supervisors and students, and that
she maintained a favorable reputation on campus.
In 2005, Hwang underwent surgery, chemotherapy, and radiation treatment for breast
cancer. She missed less than three weeks of work due to her illness, and subsequently returned
to teach her full load of classes.
On June 23, 2009, Hwang again became ill and was diagnosed with leukemia. She was
told that her survival depended on an aggressive course of chemotherapy and a bone marrow
transplant. Hwang immediately received a bone marrow transplant from her brother. After the
transplant, Hwang’s immune system was compromised and she was still undergoing
chemotherapy treatment. She therefore spent three months at the KU Medical Center, followed
by three months at Hope Lodge, an inpatient cancer facility.
At the time she sought treatment for leukemia, Hwang had accumulated approximately
two months of leave and intended to apply that time to her treatment-induced absence.
Additionally, coworkers offered to donate their accumulated leave through KSU’s shared leave
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program, which is governed by state regulations.2 Hwang applied for, and received, six months
of paid leave through KSU’s shared leave program.3 Pursuant to state regulation, the maximum
amount of shared leave that an employee may use “shall be the total hours that the employee
would regularly be scheduled to work during a six-month period.”4
Hwang had advised her supervisor, Dr. Mary Tolar, and KSU of her diagnosis and need
for medical leave. Hwang alleges that she explained her plan to use all of her accumulated leave
and the shared leave program to cover the period she would be absent. During that period, two
substitute teachers covered Hwang’s three assigned classes. Hwang prepared the substitutes and
shared her teaching materials, lesson plans, and syllibi. She also consulted with the substitutes
through phone calls and e-mails while she was hospitalized.
Hwang was released from inpatient care on November 21, 2009. Due to a severe
outbreak of the H1N1 virus at KSU, Hwang’s physicians advised that she stay away from the
campus to protect her compromised immune system. Hwang informed KSU and Dr. Tolar that
she would be taking additional leave, perhaps through the end of the spring semester, but that she
intended to teach the online course she had taught for the past three summers. Hwang assumed
this additional leave would not present a problem because the business manager of Hwang’s
department, Monica Strathman, allegedly informed Hwang that one year of shared leave was
available.
2
See K.A.R. 1-9-23.
3
It is unclear from the pleadings when Hwang’s own leave was exhausted. Hwang’s amended
complaint states, “Her accumulated leave would be exhausted sometime in December . . . .” Am. Compl., Doc. 20,
at ¶ 25. December 2009, however, marked six months after Hwang’s diagnosis, not the two months Hwang had
apparently accumulated on her own. Regardless, it is undisputed that the combination of Hwang’s leave and the
approved shared leave expired in February 2010. See E-mail to Hwang dated 2/19/10, Doc. 22-2, at 2.
4
K.A.R. 1-23-9(g)(1).
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In December 2009, KSU’s Human Resources Department contacted Hwang and advised
her to apply for long term disability benefits (“LTD”) available through the Kansas Public
Employees Retirement System (“KPERS”). Hwang believed that HR was telling her to apply for
LTD to insure that she would continue to receive benefits in the event she was unable to return
by the summer of 2010. On February 10, 2010, Stephanie Harvey, a human resources employee,
called Hwang to inform her that she was approved for LTD and would begin receiving benefits
on February 17, 2010, and that she would be responsible for paying her own health insurance
premium of $1,340 per month. Harvey informed Hwang that, by accepting LTD, Hwang would
be forced to resign and her position with KSU would be terminated.
The following day, Hwang e-mailed Dr. Tolar expressing surprise and consternation at
the news that she would be forced to resign as a condition of receiving LTD benefits. In the email, Hwang expressing a desire to return to her position, asked: “So I guess my question is
whether this is all true or whether we can label my absence this semester as ‘Leave without Pay’
or something else, so I don’t have to go through re-applying for my old job back, for lower
pay.”5
By return e-mail dated February 19, 2010, Dr. Tolar confirmed the information that
Harvey had relayed to Hwang on February 11. Dr. Tolar’s e-mail stated that Hwang’s options
were either (1) “LTD includ[ing] 60% of your salary plus benefits for as long as you need them
(through retirement age),” or (2) a continued leave of absence without pay.6 Dr. Tolar warned
Hwang that the following conditions would apply to an unpaid leave of absence:
5
See E-mail to Tolar dated 2/11/10, Doc. 22-1, at 2.
6
E-mail to Hwang dated 2/19/10, Doc. 22-2, at 3.
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[B]ecause you are a term employee, you have no contractual rights beyond June
12, 2010. Therefore, if you were to continue on leave without pay, you would
have no LTD benefits and your employment would end on the last day of your
contract, June 12, 2010, pursuant to the terms of your contract. Further, you
would be responsible for paying your own health insurance premiums beginning
immediately, as your shared leave has been exhausted as of today’s date.7
Dr. Tolar then informed Hwang that she had to make a decision immediately because Hwang’s
shared leave would end the following day.
Hwang, a single mother of two, responded, “I don’t really have many choices here. So
the Long-Term Disability is what I will proceed with.”8 Hwang also expressed a desire to return
to teaching, and said that she would speak with her doctors about moving up the date she would
be available to return. Hwang was notified by a letter from Harvey that her effective date of
termination from KSU was February 21, 2010.
On March 1, 2010, Hwang attempted to receive scheduled chemotherapy, but was
informed that KSU had cancelled her medical insurance. Hwang contends that she was never
told that her insurance would be cancelled, nor was she made aware of her COBRA rights.
Hwang’s physician, Dr. McGuirk, wrote to Dr. Tolar and informed her of the hardship KSU had
created by cancelling Hwang’s medical insurance, and that Hwang would be able to return to
teaching for the summer session.
On March 2, 2010, Hwang applied for a position at KSU as a special assistant to the
president for community relations. KSU hired a candidate from Colorado without interviewing
Hwang.
7
Id.
8
E-mail to Tolar dated 2/20/10, Doc. 22-3, at 2.
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On March 8, 2010, Hwang filed an internal disability discrimination complaint against
KSU and initiated the grievance process. After a formal hearing, KSU informed Hwang on May
18, 2010, that the university had considered her complaint, but concluded that no discrimination
occurred and they would take no further action.
On June 24, 2011, Hwang applied to KSU for a position as Interim Associate Provost for
International Programs. KSU hired another candidate without interviewing Hwang. In October
2011, Hwang applied for an adjunct position in the Department of American Ethnic Studies. The
position is for a single semester and pays $3,000 and does not include any benefits. Hwang was
selected to fill the position by the director of the department, but at the time of her initial
complaint, the dean of the university had not approved her selection.
Hwang initiated this lawsuit in federal court on December 15, 2011, alleging that her
treatment violated § 504 of the Rehabilitation Act of 1973 (“RA”).9 Her initial complaint levied
charges against both KSU and the State of Kansas, but in an amended complaint dated April 5,
2012, Hwang removed the State of Kansas from the list of parties to the suit. Hwang asserts four
causes of action against KSU: (1) discrimination, (2) failure to accommodate, (3) retaliation, and
(4) disparate treatment. First, Hwang contends that she was discriminated against on the basis of
her disability when KSU denied her COBRA benefits, denied her shared leave for the whole of
her absence, and failed to consider Hwang for other positions at KSU. Second, Hwang alleges
that KSU failed to accommodate Hwang’s disability by either awarding her shared leave for her
extended absence or offering another accommodation that would permit Hwang to retain her
position. Third, Hwang argues that KSU retaliated against her because after she asserted her
9
29 U.S.C. § 794.
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rights under the RA, KSU refused to consider Hwang for vacant positions at the university that
she was qualified to fill. Fourth, Hwang claims that she was subject to disparate treatment
because other, similarly-situated employees are routinely allowed to take leave in excess of six
months without consequence and do not have their health insurance cancelled without notice or
cause.
Hwang requests from the Court (1) declaratory judgment that KSU’s employment
policies and practices violate RA § 504, (2) an injunction requiring KSU to cease illegal actions
and reinstate Hwang to her previous position with restored benefits and seniority, and (3) entry
of judgment awarding Hwang monetary relief for economic loss, pain and suffering, and
attorneys’ fees and costs.
KSU now moves to dismiss Hwang’s amended complaint on numerous grounds. First,
KSU argues that Hwang has failed to state a claim under the RA because KSU did not take any
adverse action against her, she is not “otherwise qualified” to perform the essential functions of
her job, and she did not request an accommodation. Second, KSU argues that Hwang’s claims
should have been brought under the Kansas Judicial Review Act rather than § 504 of the RA.
Third, KSU argues that Hwang failed to state a failure-to-hire claim under the RA regarding the
positions she subsequently applied for at the university. Fourth, KSU claims that Hwang’s
claims of disparate treatment are composed solely of conclusory allegations and are not
plausible. Finally, KSU references a brief filed by the State of Kansas, a party that has since
been terminated from the case, and alleges that KSU is entitled to sovereign immunity.
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II.
A.
Legal Standards
Standard for Dismissal under Fed. R. Civ. P. 12(b)(6).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move for
dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be
granted.10 Upon such motion, the court must decide “whether the complaint contains ‘enough
facts to state a claim to relief that is plausible on its face.’”11 A claim is facially plausible if the
plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the
alleged misconduct.12 The plausibility standard reflects the requirement in Rule 8 that pleadings
provide defendants with fair notice of the nature of claims as well the grounds on which each
claim rests.13
Under 12(b)(6), the court must accept as true all factual allegations in the
complaint, but need not afford such a presumption to legal conclusions.14 Viewing the complaint
in this manner, the court must decide whether the plaintiff’s allegations give rise to more than
speculative possibilities.15
If the allegations in the complaint are “so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’”16
10
Fed. R. Civ. P. 12(b)(6).
11
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
12
Iqbal, 556 U.S. at 678 (citing Twombly, 566 U.S. at 556).
13
See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citations omitted); see also Fed. R.
Civ. P. 8(a)(2).
14
Iqbal, 556 U.S. at 678–79.
15
See id. at 678 (“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.” (Citation omitted)).
16
Robbins, 519 F.3d at 1247 (quoting Twombly, 566 U.S. at 570).
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B.
Section 504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with
a disability . . . shall, solely by reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.”17 Section 504 explicitly applies to termination, right of
return from layoff and rehiring, leaves of absence, and benefits available through employment.18
The RA generally adopts the standards of the Americans with Disabilities Act (ADA)19 for
claims of employment discrimination.20 To state a claim under § 504, then, a plaintiff must
allege sufficient facts to prove the following: (1) she is disabled under the RA; (2) she is
“otherwise qualified” to perform, with or without reasonable accommodation, the essential
functions of her position; (3) she was discriminated against solely by reason of her disability; and
(4) the program or activity in question receives federal financial assistance.21 KSU does not
dispute Hwang’s contention that she is disabled under the RA or that KSU is a program receiving
federal financial assistance. Instead, KSU alleges that Hwang has not alleged facts sufficient to
show that she is “otherwise qualified” or that KSU discriminated against her on the basis of her
disability.
17
29 U.S.C. § 794(a).
18
45 C.F.R. § 84.11(b).
19
42 U.S.C. §§ 1211 et seq.
20
29 U.S.C. § 794(d).
21
See Cohon ex rel. Bass v. New Mexico Dep’t of Health, 646 F.3d 717, 725 (10th Cir. 2011) (citation
omitted).
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III.
A.
Analysis
KSU is not entitled to sovereign immunity on all claims.
Federal courts are courts of limited jurisdiction, and must have a statutory or
constitutional basis to exercise jurisdiction.22
Rule 12(b)(1) of the Federal Rules of Civil
Procedure permits a party to move for the dismissal of any claim over which the court lacks
jurisdiction. The Eleventh Amendment bars private citizens from bringing suit against a state in
federal court, unless the state waives or Congress unequivocally abrogates the state’s
immunity.23 The Eleventh Amendment, therefore, acts a jurisdictional bar prohibiting a federal
court from hearing claims against a party immune from suit.24
KSU incorporates by reference the arguments advanced by the State of Kansas in its
motion to dismiss Hwang’s claims against the State. The State argued that it had not waived its
Eleventh Amendment immunity from suit with respect to § 504 of the RA. Assuming without
deciding that KSU is entitled to Eleventh Amendment immunity,25 this Court would be deprived
22
See U.S. Const. art. III; Sheldon v. Sill, 49 U.S. 441, 448–49 (1850).
23
See U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.”); Hans v. Louisiana, 134 U.S. 1, (1890) (interpreting the Eleventh
Amendment as implicitly recognizing the doctrine of sovereign immunity, and also barring suits against a state by
the state’s own citizen); Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000).
24
See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (holding that a party could raise an Eleventh
Amendment defense on appeal because the defense “sufficiently partakes of the nature of a jurisdictional bar”).
25
In Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), the Supreme Court held that § 504 did not
contain an explicit waiver of Eleventh Amendment immunity sufficient to subject states to suit in federal courts.
Congress subsequently amended the Act to include what it intended to be a clear statement waiving the states’
sovereign immunity from suits brought under § 504. See 42 U.S.C. § 2000d-7(a)(1). Citing language from the
Supreme Court in the subsequent case of Lane v. Pena, 518 U.S. 187, 198 (1996), the Tenth Circuit held that states
and state entities—such as state universities—that accept federal monies enumerated under 42 U.S.C. § 2000d-7
waive sovereign immunity from suit. See Robinson v. Kansas, 295 F.3d 1183, 1189–90 (10th Cir. 2002), abrogated
on other grounds by Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir. 2012); see also Brockman v.
Wyoming Dep’t of Family Servs., 342 F.3d 1159, 1168. The Court, however, recognizes that application of the
foregoing case law to the differing sovereign immunities of the federal and state governments has not been
thoroughly explored within the district. Compare Thomas v. Kan. Social and Rehabilitation Servs., No. 10-4154-
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of jurisdiction only with respect to Hwang’s claims for monetary relief, not future injunctive
relief.26
Therefore, the Court must still decide whether Hwang’s complaint is subject to
dismissal under Rule 12(b)(6).
B.
Hwang failed to allege facts sufficient to show violations of the RA.
Although the Court is sympathetic to Hwang’s unfortunate circumstances, the Court
agrees with KSU that Hwang has failed to allege the existence of sufficient facts to show that she
is entitled to any relief from the university. The Court will address each charge from the
amended complaint in turn.
1.
Charge I: Discrimination
Hwang first claims that KSU discriminated against her in violation of § 504 of the RA
when it denied her COBRA benefits, denied her participation in the University’s shared leave
program, and failed to consider or hire Hwang for the positions she applied for in 2010. None of
these claims can survive KSU’s motion to dismiss for failure to state a claim.
First, Hwang has not pleaded facts sufficient to show that KSU denied Hwang COBRA
benefits as a result of Hwang’s disability. Other than her conclusory allegation that KSU denied
COBRA benefits due to Hwang’s disability, Hwang has not provided any detail about the
termination of her medical insurance. From the record, it appears Hwang was informed that
acceptance of LTD benefits would require her to pay her own insurance premiums to maintain
JTM, 2012 WL 1034939 (D. Kan. Mar. 27, 2012) (relying on Tenth Circuit case law to hold that the Eleventh
Amendment did not bar a claim against a state entity under § 504 of the Rehabilitation Act), with Sanders v.
Shinseki, No. 11-4179-JTM, 2012 WL 5985469 (D. Kan. Nov. 29, 2012) (citing the Supreme Court’s decision in
Lane and concluding that the court would “follow U.S. Supreme Court precedent in holding that Congress did not
waive the federal government’s sovereign immunity for monetary damages in Section 504 claims” (emphasis
added)). Therefore, the Court will leave the issue of sovereign immunity for another day.
26
See generally Ex parte Young, 209 U.S. 123 (1908) (holding that the Eleventh Amendment does not
bar suits against state actors for injunctive relief because preventing a state official from performing allegedly illegal
acts does not infringe upon a state’s sovereignty).
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insurance. Therefore, the Court must assume that any denial of COBRA benefits was not an act
of discrimination, but merely the result of Hwang’s decision to accept LTD benefits.
Second, KSU’s decision to not award shared leave in excess of six months was not an act
of discrimination, but compliance with state regulations.27 To the extent that Hwang is alleging
the state regulation limiting participation in the shared leave program violates § 504, the Court
finds such argument without merit. In Alexander v. Choate, the Supreme Court was asked to
determine whether a state violated § 504 of the Rehabilitation Act when it reduced the number of
days of inpatient hospital care that would be covered by Medicaid from twenty to fourteen.28
The Court began its analysis by recognizing the important, yet competing, interests implicated
under § 504: the statutory objective of prohibiting discrimination against the handicapped and
the need “to keep § 504 within manageable bounds.”29 Appealing to both of these interests, the
Court found that § 504 guarantees disabled individuals “meaningful access to the benefit that the
grantee offers,” but that the state’s reduction in Medicaid benefits did not deny meaningful
access to Medicaid services.30 The Court noted that the reduction was neutral on its face, and did
not work “a particular exclusionary effect on the handicapped.”31
In the case presently before this Court, there is nothing in the pleadings to suggest that
Kansas Administrative Regulation 1-23-9(g)(1) denies disabled individuals meaningful access to
the shared leave program. The limitation on participation in the program is facially neutral and
27
See K.A.R. 1-23-9(g)(1).
28
469 U.S. 287, 289 (1985).
29
Id. at 299.
30
Id. at 301–02.
31
Id. at 302.
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Hwang has not alleged the existence of any facts showing the limitation has a particularly
exclusionary effect on disabled individuals. Therefore, Hwang cannot claim KSU violated § 504
when it denied her further participation in the shared leave program.
Finally, Hwang has failed to allege sufficient facts to show KSU discriminated against
her based on her disability when it declined to hire her for the positions she applied for in 2010.
Turning first to the position of special assistant to the president for community relations, Hwang
alleges the following facts: (1) she was qualified for the position, (2) she was not interviewed,
and (3) KSU hired a candidate from Colorado without considering Hwang. With respect to the
position of Interim Associate Provost for International Programs, Hwang alleges: (1) she was
qualified for the position, (2) she was not interviewed, and (3) KSU appointed another candidate
without considering Hwang’s application. Even after affording these facts the presumption of
truth, they are insufficient to establish discrimination in either instance. There are numerous
reasons independent of her disability that KSU may have declined to consider Hwang for these
positions. A mere possibility of illegal conduct is insufficient to meet the pleading requirements
announced in Ashcroft v. Iqbal.32
Therefore, Hwang’s claims of discriminatory hiring in
violation of § 504 must be dismissed for failure to state a claim.
2.
Charge II: Failure to Accommodate
In her second charge, Hwang alleges that KSU violated § 504 of the RA when it failed to
accommodate her disability by (1) denying Hwang’s request for extended leave and (2) “fail[ing]
32
556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (“But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’”).
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to consider any other accommodation and fail[ing] to engage in the interactive process.”33
Neither of these allegations can support a claim for failure to accommodate. As previously
stated, KSU was complying with state regulations when it denied Hwang’s request to
participated in the shared leave program after she exhausted six months’ worth of leave, and
there is no evidence that the six-month limitation on shared leave violates § 504. Furthermore,
because Hwang bears the initial burden of proving that an accommodation is reasonable,34 she
cannot prove a violation of § 504 by alleging that KSU failed to consider unspecified
accommodations.35 A claim is not plausible on its face if the complainant cannot even articulate
the illegal conduct. Therefore, Hwang’s claim for failure to accommodate must be dismissed for
failure to state a claim upon which relief can be granted.
3.
Charge III: Retaliation
Hwang’s third claim against KSU argues that KSU retaliated against Hwang when it
denied Hwang COBRA benefits and extended shared-leave, and when it failed to interview or
hire Hwang for the positions she applied for with the university. Hwang bears the burden of
establishing a prima facie case of retaliation.36 To do so, Hwang must show that (1) she engaged
in protected action in opposition to discrimination, (2) a reasonable employee would find the
33
Am. Compl., Doc. 20, at ¶ 85. The Court is unclear about “the interactive process” cited by Hwang.
Absent more facts, the Court will not assume that this process is a particular accommodation.
34
See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401–02 (2002); Mason v. Avaya Communications,
Inc., 357 F.3d 1114, 1122 (10th Cir. 2004).
35
Hwang mentions that KSU has a policy of granting year-long sabbaticals in her fourth claim of
disparate treatment, but does not allege that she ever proposed this solution as a reasonable accommodation. See
Am. Compl., Doc. 20, at ¶ 101. Furthermore, KSU’s response claims that sabbatical was not available to nontenured professors like Hwang. See Def. Resp., Doc. 22, at 18.
36
See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999).
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KSU’s challenged action to be materially adverse, and (3) a causal connection existed between
Hwang’s protected opposition and KSU’s materially adverse action.37
With respect to Hwang’s claim that KSU denied benefits and leave as a retaliatory act,
the Court is not convinced that Hwang’s e-mail to Dr. Tolar asking for clarification about the
university’s LTD policies constituted protected opposition to discrimination. KSU’s suggestion
that Hwang apply for LTD benefits was not an act of discrimination, and Hwang’s e-mail reads
more like a request for clarification than a formal complaint. Even if Hwang did meet her
burden of establishing the first and second elements of a retaliation claim, she has not alleged
facts sufficient to establish a causal connection between Hwang’s e-mails and the alleged
cancellation/denial of her benefits and leave. According to KSU, those consequences were a
result of Hwang’s acceptance of LTD benefits and not any action taken by the university.
Hwang has not alleged any facts showing that KSU’s explanation is pretextual.
Turning to Hwang’s claim that she was denied interviews and employment as a result of
the internal grievance procedure she initiated, she has again failed to establish a prima facie
claim of retaliation. First, with respect to the community relations position, Hwang did not
allege any facts that suggest a causal relationship between her initiation of a grievance claim and
KSU’s failure to interview or hire her. Second, Hwang has not alleged any facts to establish a
causal connection between KSU’s decision to not interview or hire Hwang for the associate
provost position. Although temporal proximity may be sufficient to infer a retaliatory motive,
the Tenth Circuit has stated that the adverse action must be “very closely connected in time to the
37
See Hennagir v. Utah Dep’t of Corrections, 587 F.3d 1255, 1265 (10th Cir. 2009).
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protected activity.”38 For example, an intervening period of three months, standing alone, was
found to be insufficient to establish a prima facie case of causation.39 Here, Hwang submitted
her grievance claim on March 8, 2010, and did not apply for the associate provost position until
June 24, 2011.
This intervening period of more than fourteen months, standing alone, is
insufficient to support Hwang’s claim of retaliation. Therefore, Hwang’s retaliation claim must
be dismissed under Rule 12(b)(6) for failure to state a claim.
4.
Charge IV: Disparate Treatment
Finally, Hwang claims that KSU engaged in disparate treatment on the basis of disability.
Hwang alleges that she was treated differently than similarly situated, nondisabled individuals
with respect to leave, benefits, forced resignation, and participation in the university’s sabbatical
program. Hwang offers no detail as to the facts underlying these comparisons, and therefore
fails to show any disparate treatment.
First, Hwang states that “[s]imilarly situated employees who are not disabled are
routinely allowed to take leave in excess of six months for various reasons.”40 Hwang, too, was
allowed to take unpaid leave in excess of six months, but she instead chose to accept LTD
benefits. Second, Hwang mentions the university’s sabbatical program, but does not allege that
nondisabled, non-tenured professors like herself were permitted to take sabbaticals. Third,
Hwang states that “[s]imilarly situated employees who are not disabled do not have their health
insurance cancelled without notice or cause.”41 But Hwang’s complaint admits that she was told
38
Anderson, 181 F.3d at 1179.
39
Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).
40
Am. Compl., Doc. 20, at ¶ 100.
41
Id. at ¶ 105.
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that she would be responsible for her own health insurance premiums if she accepted LTD
benefits. Fourth, Hwang asserts that nondisabled employees are “routinely offered” COBRA
benefits and shared leave. Hwang did participate in KSU’s shared leave plan for the maximum
amount of time permitted under Kansas law. And Hwang has not alleged facts showing that
nondisabled employees who participate in COBRA are treated disparately from disabled
employees who accept LTD benefits. Therefore, Hwang cannot sustain her claim of disparate
treatment.
In conclusion, Hwang has failed to allege facts sufficient to show a plausible claim for
relief. Because Hwang has failed to state a claim upon which relief can be granted, her First
Amended Complaint must be dismissed in accordance with Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
IT IS ACCORDINGLY ORDERED this 28th day of February, 2013, that Defendant’s
Second Motion to Dismiss (Doc. 21) is hereby GRANTED.
IT IS ALSO ORDERED that Defendant’s Motion to Dismiss (Doc. 7) is hereby
DISMISSED AS MOOT.
IT IS SO ORDERED.
Eric F. Melgren
United States District Judge
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