Nyanjom v. Hawker Beechcraft Corp.
Filing
116
MEMORANDUM AND ORDER denying 64 Motion to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 1/14/2014. Mailed to pro se party Harold Nyanjom by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HAROLD M. NYANJOM,
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Plaintiff,
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vs.
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HAWKER BEECHCRAFT, INC.,
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Defendant. )
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Case No. 12-1461-JAR-KGG
ORDER ON MOTION FOR LEAVE TO FILE
FIRST AMENDED COMPLAINT
Plaintiff files the present Motion for Leave to File First Amended Complaint
for “greater specificity and [to] assert additional clarification about the nature of
his legal claim (as determined by KHRC and EEOC), that Defendant . . . violated
employment laws relative to ADA, by discriminating against him due to his
disability, denying him reasonable accommodation and not offering him alternative
jobs were [sic] available.” (Doc. 64-1, at 1.) In reality, Plaintiff seeks to allege
new causes of action under Executive Order 11246, Section 503 and 504 of the
Rehabilitation Act, Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974 (“ERISA”) the Vietnam Era Veterans
Readjustment Assistance Act of 1974 (“VEVRAA”), state law claims for violation
of the Kansas Act Against Discrimination, wrongful and/or retaliatory discharge,
willful and malicious injury, and malicious prosecution. (See Doc. 64-1, at 2-3.)
The Court DENIES Plaintiff’s motion in its entirety as set forth below.
BACKGROUND
Plaintiff, who was born in 1968, was formerly employed by Defendant.
That employment was terminated on June 1, 2011.
Plaintiff, who represents himself pro se, filed the present case in the
Southern District of New York alleging violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”) by his
former employer in the termination of his employment, failure to accommodate his
alleged disability, unequal terms and conditions of employment, and retaliation.
(See generally Doc. 2.) The case was transferred to the District of Kansas on
December 11, 2012, because the alleged wrongful employment practices occurred
in Wichita. (Doc. 7.)
Defendant filed its bankruptcy Petition in the Bankruptcy Court of the
Southern District of New York on May 3, 2012. Pursuant to the Order of that
Court, all Proofs of Claims were required to be filed by September 14, 2012. (Doc.
29.) The “Stipulation and Agreed Order Modifying the Plan Injunction with
Respect to Certain Former Employee Claimant” filed in the Bankruptcy Court on
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May 17, 2013, had the limited purpose of allowing Plaintiff to liquidate the claims
then pending in the present case. (Doc. 29-1.) The stipulation does not authorize
additional or new claims against Defendant. (Id.)
DISCUSSION
Federal Rule 15(a) provides, in pertinent part, that “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” In
the absence of any apparent or declared reason, such as undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment, leave to
amend should be freely given, as required by the federal rule. Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
A court is justified in denying a motion to amend as futile if the proposed
amendment could not withstand a motion to dismiss or otherwise fails to state a
claim. Nkemakolam v. St. John’s Military School, 890 F.Supp.2d 1260, 1261-62
(D. Kan. 2012); Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); see also 6
Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE § 1487 at 642
(1990). In light of United States Supreme Court precedent, the Tenth Circuit has
restated the standard for ruling on motions to dismiss under Fed.R.Civ.P. 12(b)(6),
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and now looks at what is described as a “plausibility” standard. Nkemakolam,
890 F.Supp.2d at 1262. As this Court explained the plausibility standard in
Nkemakolam,
the Supreme Court has recently ‘clarified’ this standard,
stating that ‘to withstand a motion to dismiss, a
complaint must contain enough allegations of fact ‘to
state a claim to relief that is plausible on its face.’
[Robbins v. Oklahoma, 519 F.3d 1242], at 1247 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Specifically,
‘[f]actual allegations must be enough to raise a right to
relief above the speculative level,’ Twombly, 550 U.S. at
555, 127 S.Ct. 1955, so that ‘[t]he allegations must be
enough that, if assumed to be true, the plaintiff plausibly
(not just speculatively) has a claim for relief.’ Robbins,
519 F.3d at 1247. Under this standard, ‘a plaintiff must
nudge his claims across the line from conceivable to
plausible in order to survive a motion to dismiss.’ Smith
[ v. U.S.], 561 F.3d [1090] at 1098 [(10th Cir.2009) ].
Therefore, a plaintiff must ‘frame a ‘complaint with
enough factual matter (taken as true) to suggest’ that he
or she is entitled to relief.' Robbins, 519 F.3d at 1247
(quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
Id. Within this context, the Court will review each of Plaintiff’s requested
amendments.
A.
Vietnam Era Veterans’s Readjustment Assistant Act.
Plaintiff’s memorandum indicates that he is seeks to bring this action
pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974,
among other legal authority. (Doc. 64-1, at 3.) It is uncontested that Plaintiff is
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not a United States military veteran. Also, having been born in 1968, Plaintiff
could not have served during the Vietnam War. Simply stated, Plaintiff is not
protected by this statute. Further, this Act does not provide a private and
independent cause of action. See Ledbetter v. City of Topeka, 112 F.Supp.2d
1239, 1242 (D. Kan. 2000). Plaintiff’s request to amend his Complaint relating to
VEVRAA is denied as futile.
B.
Executive Order 11246.
Plaintiff’s initial memorandum makes several references to his action being
brought pursuant to Executive Order 11246. (Doc. 64-1, at 2, 3, 7, 16.) This
Executive Order “requires that federal contractors provide in all nonexempted
government contracts a clause that, among other things, prohibits contractors from
discriminating on the basis of race and requires the contractors to take ‘affirmative
action’ to ensure that employees are hired without regard to race.” Riggs v. Boeing
Co., No 98-2091-JWL, 1999 WL 233285, at *1 (D. Kan. March 4, 1999). See also
Executive Order 11246, reprinted in 42 U.S.C. § 2000e note at 24–29 (1994). The
Riggs decision held that “virtually every federal court to consider the issue has
held that Executive Order 11246 does not provide a private right of action.” 1999
WL 233285, at *1. Plaintiff’s request to amend his Complaint relating to
Executive Order 11246 is denied as futile.
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C.
Title III of the ADA.
Plaintiff also indicates that he intends to assert a cause of action for alleged
violations of Title III of the ADA. (Doc. 64-1, at 2-3, 12.) This portion of the
Americans with Disabilities Act prohibits disability discrimination in places of
public accommodation. See 42 U.S.C. § 12182(a). Defendant is a
factory/manufacturing company, not a “place of public accommodation” under the
ADA. Plaintiff’s request to amend is denied as futile in regard to Title III of the
ADA.
D.
Title VII of the Civil Rights Act of 1964.
Plaintiff’s initial memorandum also makes several references to causes of
action being brought pursuant to Title VII of the Civil Rights Act of 1964. (Doc.
64-1, at 2, 3, 7, 16.) Title VII prohibits employment discrimination based on race,
sex, color, religion, or national origin. 42 U.S.C. § 2000e et seq. Plaintiff has not
alleged that he belongs to any of the classes protected by Title VII or that he was
the victim of discrimination based on these protected classes. Further, Plaintiff’s
agency charge of discrimination included only allegations of disability
discrimination, which is covered by the ADA, not Title VII. The time has expired
for Plaintiff to file a timely charge of discrimination relating to his employment,
which ended in June of 2011. As such, he has not exhausted his administrative
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remedies relating to any potential Title VII claims and his requested amendment
must be denied as futile.
E.
Sections 503 and 504 of the Rehabilitation Act.
Plaintiff’s brief also references causes of action arising under Sections 503
and 504 of the Rehabilitation Act. (Doc. 64-1, at 2, 3, 7, 16.) Section 503 of the
Rehabilitation Act, 29 U.S.C. § 793, does not provide for a private cause of action.
Jones v. United Parcel Service, Inc., 378 F.Supp.2d 1312, 1313 (D.Kan. 2005).
As such, Plaintiff’s request to amend relating to Section 503 is denied as futile.
Section 504, on the other hand, does provide for a private cause of action for
disability discrimination “under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C. § 794. While Defendant does have certain contracts
with the United States, Defendant does not receive “Federal financial assistance.”
Plaintiff’s request to amend relating to Section 504 is denied as futile.
F.
ERISA.
Plaintiff’s brief makes multiple references to claims brought pursuant to
ERISA, 29 U.S.C. § 1001, et seq. (Doc. 64-1, at 2, 7, 16.) Defendant argues that
“there is nothing in plaintiff’s motion that provides any hint as to why he believes
defendant has violated ERISA.” (Doc. 76, at 17-18.) The Court agrees. Further,
potential ERISA claims would exceed the scope of the Bankruptcy Court’s
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stipulation. Plaintiff’s request to amend to include claims arising under ERISA is
denied as futile.
G.
Harassment, Intimidation, Hostility.
Page 17 of Plaintiff’s brief enumerates a proposed cause of action for
“harassment, intimidation and hostility” relating to his disability. (Doc. 64-1, at
17.) Any claims for disability harassment are separate and distinct from claims for
disability discrimination and, as such, claims for harassment are required to be
included in a plaintiff’s administrative charge with the EEOC and/or KHRC. Cf.
Fisher v. University of Kansas Facilities Operations, No. 10-4102-DJW, 2011
WL 5868349, at *4-7 (D. Kan. Nov. 22, 2011) (drawing this conclusion in regard
to the distinction between claims for race discrimination versus those for racial
harassment). Allegations of disability discrimination are contained in Plaintiff’s
administrative filing while allegations of disability harassment are not. The time
has expired to file a timely charge of harassment relating to Plaintiff’s
employment. Thus, Plaintiff’s request to amend his Complaint to include such
claims is, therefore, denied.
H.
Wrongful/Retaliatory Discharge.
Plaintiff “alleges the state law tort of wrongful and/or retaliatory discharge
as an alternative to his federal law retaliation claim.” (Doc. 64-1, at 3.) Defendant
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argues that “[p]ermitting such an amendment would be futile because plaintiff has
an adequate statutory remedy, which precludes a common law claim.” (Doc. 76, at
21.) The Court agrees that Plaintiff has raised a claim for retaliation falling under
the Americans with Disabilities Act and that the ADA precludes a separate tort
recovery under Kansas common law. See Conner v. Schnucks Markets, Inc., 121
F.3d 1390, 1399 (10th Cir. 1997) (holding that common law causes of action for
retaliation are precluded when the plaintiff is protected by a federal statutory right).
Plaintiff’s request to amend his Complaint to include a common law
wrongful/retaliatory discharge claim is, therefore, denied.
I.
Malicious Prosecution and Injury.
Plaintiff “also alleges state law torts of willful and malicious injury and
prosecution as an alternative to defendants.” (Doc. 64-1, at 3.) The Kansas
Supreme Court has held that a claim for malicious prosecution requires the
following five elements be established:
(1) Defendant initiated, continued, or procured the
proceeding of which complaint is made; (2) defendant in
doing so acted without probable cause; (3) defendant
acted with malice; (4) the proceedings terminated in
favor of plaintiff; and (5) plaintiff sustained damages.
Lindeman v. Umscheid, 255 Kan. 610, Syl. ¶ 7, 875 P.2d 964 (1994). The Court
agrees with Defendant’s contention that Plaintiff’s requested amendment is futile
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because Plaintiff has initiated proceedings against Defendant, not the other way
around. Plaintiff’s requested amendment is denied.
The Court also denies Plaintiff’s request to add a claim for “willful and
malicious injury.” The Court is aware of any authority recognizing such a cause of
action. As such, the proposed amendment is futile.
J.
Tort of Outrage.
Plaintiff seeks to add a claim for the tort of outrage, which is also known as
intentional infliction of emotional distress. (Doc. 64-1, at 18.) In order to prevail
on such a claim, Plaintiff mush prove the following:
(1) The conduct of the defendant was intentional or in
reckless disregard of the plaintiff; (2) the conduct was
extreme and outrageous; (3) there was a causal
connection between the defendant's conduct and the
plaintiff's mental distress; and (4) the plaintiff's mental
distress was extreme and severe.
Liability for extreme emotional distress has two
threshold requirements which must be met and which the
court must, in the first instance, determine: (1) Whether
the defendant's conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery; and (2)
whether the emotional distress suffered by plaintiff is in
such extreme degree the law must intervene because the
distress inflicted is so severe that no reasonable person
should be expected to endure it.
Conduct that rises to the level of tortious outrage
must transcend a certain amount of criticism, rough
language, and occasional acts and words that are
inconsiderate and unkind. The law will not intervene
where someone's feelings merely are hurt. In order to
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provide a sufficient basis for an action to recover for
emotional distress, conduct must be outrageous to the
point that it goes beyond the bounds of decency and is
utterly intolerable in a civilized society.
Lopez-Aguirre v. Board of County Comm’rs of Shawnee Co., 2013 WL 1668239
(D.Kan. April 17, 2013) (quoting Valadez v. Emmis Communs., 290Kan. 472,
476-77 (2010) (citations omitted)). The Court agrees with Defendant that
Plaintiff’s allegations of discrimination do not rise to the level of outrage. Further,
there are no allegations establishing that the emotional distress suffered by
Plaintiff, if any, is so extreme that the Court must intervene because “no reasonable
person should be expected to endure it.” Id. Plaintiff’s request to amend his
Complaint to include the tort of outrage is denied.
K.
False Claims Act.
Finally, Plaintiff contends that he should be allowed to add a claim against
Defendant under the False Claims Act. While the Court acknowledges
Defendant’s request that the Court strike Plaintiff’s request pursuant to D. Kan.
Rule 7.1, the Court will address this issue substantively.
The factual allegations relating to a False Claims Act claim contained in
Plaintiff’s second memorandum occurred before Defendant filed for bankruptcy.
(See generally Doc. 64-2.) Defendant argues that “[b]ecause plaintiff failed to file
any timely Proof of Claim regarding his allegation of false claims, he is precluded
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from pursuing such a claim now.” (Doc. 76, at 27.) The Court agrees.
See Fed.R.Bkrcy.P. 3003(c)(2). As such, Plaintiff’s request to amend to include a
cause of action under the False Claims Act is denied as futile.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion for Leave to File
First Amended Complaint” (Doc. 64) is DENIED as set forth above.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 14th day of January, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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