Ntamere v. Amerihealth Adminstrators Inc et al

Filing 59

ORDER denying 47 Motion for Leave to File Reply/Surreply; granting 14 Motion to Dismiss/General (Written Opinion) Signed by Judge Katherine M. Menendez on 11/14/2023. (KD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anthony E. Ntamere,

Case No. 22-cv-02682 (KMM/JFD)

Plaintiff,

ORDER

v.
Amerihealth Administrators Inc., et. al,
Defendants.

Plaintiff Anthony Ntamere brings this action pro se against several parties,
alleging racial discrimination, retaliation, defamation, and violation of due process under
numerous federal and state laws.

[Am. Compl., ECF No. 4.]

In Count One of

Mr. Ntamere’s Amended Complaint, he alleges deprivation of his civil rights by
Defendants Minnesota Department of Human Rights (“MDHR”), Amerihealth
Adminstrators Inc (“AHA”), and Charlotte Czarnecki in violation of 42 U.S.C. § 1983.
Mr. Ntamere also brings a claim against Defendants Independence Blue Cross, LLC
(“IBC”), AHA, Jeffrey Kearns, John Clayton, and Tashima Waller for discriminatory
treatment due to race in violation of 42 U.S.C. § 1981 and a claim for retaliation under
the same statute by Defendants IBC and AHA in Counts Two and Three, respectively.
Furthermore, Mr. Ntamere brings a claim against IBC and AHA for reprisal in
Violation of Minn. Stat. § 363A.15; a race discrimination claim against IBC, AHA,
Kearns, Clayton, and Waller in Violation of Minn. Stat. § 363A.08, subd. 2; a claim

against IBC, AHA, Clayton, and Schumacher in violation of the Minnesota
Whistleblower Act; and a defamation claim against Schumacher and Clayton.
Before the Court are a motion to dismiss filed by several defendants 1 [Mot. to
Dismiss, ECF No. 14.] and Mr. Ntamere’s motion to file a surreply to Defendants’
motion. [Mot. to File Surreply, ECF No. 47.] Defendants’ motion is GRANTED, and
Mr. Ntamere’s motion is DENIED. 2
I.

Background

When considering a motion to dismiss, a court assumes all factual allegations in
the complaint are true and construes all reasonable inferences in favor of the nonmoving
party. Dormani v. Target Corp., 970 F.3d 910, 914 (8th Cir. 2020). The Court may
consider the Complaint and documents attached to it, as well as materials contemplated
by the Complaint. Dittmer Properties, L.P. v. F.D.I.C., 708 F.3d 1011, 1021 (8th Cir.
2013); see also Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014) (“Though
matters outside the pleading may not be considered in deciding a Rule 12 motion to
dismiss, documents necessarily embraced by the complaint are not matters outside the
pleading.”) (citations omitted). In this case, Mr. Ntamere submitted numerous documents

The defendants bringing this motion to dismiss are AmeriHealth Administrators,
Inc. (“AHA”) and Independence Blue Cross, LLC (“IBC”), along with Michele
Schumacher, John Clayton, Jeffrey Kearns, and Tashima Waller (collectively the “AHA
Individuals”).
2
Mr. Ntamere essentially submitted a surreply when providing his reasoning for
why the Court should allow him a surreply, and the Court will consider that document in
its analysis. The Court does not need anything further from Mr. Ntamere, and to the
extent that he seeks leave to submit additional arguments, that request is denied.
1

2

and an audio recording along with the Complaint, so the Court has considered all of those
materials in its review of the Motion to Dismiss.
The events at issue in this lawsuit took place while Mr. Ntamere was an employee
at AmeriHealth Administrators, Inc. (“AHA”), a subsidiary of Independence Blue Cross,
LLC (“IBC”).

[Am. Compl. ¶ 5.]

In July 2019, Mr. Ntamere attended a training

workshop at AHA’s Bloomington, MN location. [Id. ¶ 54.] The presentation focused on
diversity and inclusion awareness, respect, and unconscious bias.

[Id.]

Three IBC

employees, Tashima Waller, Jeffrey Kearns, and John Clayton, led the training. [Id. ¶
55.] According to Mr. Ntamere, while at the training Mr. Kearns used a racist slur, which
Mr. Ntamere recorded. 3 [Id. ¶ 57.] Mr. Ntamere reported the incident to IBC’s General
Counsel. [Id. ¶ 68.] In making his complaint, he disclosed that he recorded the training.
[Id.

¶

69.]

AHA

investigated

the

incident

but

could

not

corroborate

Mr. Ntamere’s assertion that Mr. Kearns used a racial slur during the presentation; no
other witnesses reported hearing the slur, and they concluded that Mr. Ntamere’s
recording was inconclusive. [MDHR Reconsideration ¶ 10, ECF No. 4-4.]
On August 6, 2019, AHA placed a probation notice in Mr. Ntamere’s employee
file for recording the training in violation of company policies. [Am. Compl. ¶ 69, 70;
EEOC Charge at 1, ECF No. 4-1.] Around the same time, AHA informed Mr. Ntamere
that any future internal complaints should be directed to Carol Dunleavy, a human

The Complaint contained a link to the audio recording, and the Court listened to
it. The Court does not hear any use of a racial slur on the recording.
3

3

resources employee, or initiated via AHA’s toll-free compliance hotline.

[MDHR

Reconsideration ¶ 11.]
After being placed on probation, Mr. Ntamere sought to file a charge with the
EEOC and ran into various difficulties. [Am. Compl. ¶ 70–84.] The EEOC ultimately
closed its file, determining that it could not conclude based on the information it obtained
that federal law had been violated.

[EEOC Dismissal at 9, ECF No. 4-2.]

Mr. Ntamere then attempted to file a complaint with the MDHR about the alleged use of
the racial slur; however, because the initial complaint was filed with the Pennsylvania
Human Rights Commission, he was told he would need to contact the PHRC for
assistance. [Am. Compl. ¶¶ 83–84.] The PHRC declined to accept his charge because he
was not a Pennsylvania resident. [Am. Compl. ¶ 82.]
In June 2020, IBC’s then-CEO sent out an email within the company condemning
racism. [Id. ¶¶ 87–91.] Given his experience at the earlier workshop, Mr. Ntamere found
the email insincere, and he expressed this opinion on the company’s intranet platform, the
iWay. 4 [Id.] In response, Michele Schumacher, Director of Human Resources at AHA,
placed a second probation notice in Mr. Ntamere’s employee file for failing to comply

The iWay is an intranet platform used by IBC and AHA employees to access
training modules, company directories, IT support information, news updates, and limited
social media engagement. [Defendants’ Mem. in Supp. 4, ECF No. 16.] Mr. Ntamere’s
iWay post stated, in part, “[Company] does not stand against institutional racism or how
else would a white male . . . HR manager feel confident enough to utter the N-word in
front of my coworkers . . . during the training.” [MDHR Order ¶ 12.]
4

4

with the directive in his 2019 probation notice and for violating company policy. 5 [Id. ¶
95.]
Mr. Ntamere then made additional comments critical of IBC on iWay. 6 [Id. ¶ 96;
MDHR Order ¶ 14.] AHA terminated Mr. Ntamere’s employment on June 24, 2020. [Id.
¶ 97.]
5

Ms. Schumacher informed Mr. Ntamere that:
By posting your comment on June 8, 2020, you violated the directive in
your 2019 probation to make any complaints solely to Carol Dunleavy
or the compliance hotline.
Additionally, the post violated the
company’s Harassment Free Workplace Policy and Computing Devices
Acceptable Use Policy because you used the company’s intranet site to
transmit defamatory and harassing content and because you falsely
accused another individual of harassment in a malicious manner.

[Am. Compl. ¶ 95.]
6

This post said:
[Company] wants me to pretend that I was not called the N-word by
[07/31/2019 workshop presenter] despite the fact that I provided a
recording to HR . . . during the anti-bias training workshop held last
year in MN. Listening to [Company] talk about racism is like listening
to Thomas Jeffrey [sic] advocate the abolition of slavery. A sociopath
will pee on your leg and say it is raining. I’m on the verge of being
fired for my refusal to let [07/31/2019 workshop presenter’s] conduct go
unpunished. I have now been placed on probation again by [HR
representatives] with threats of being fired if I continue to complain
about the July 31 [, 2019] incident. Had it not been for the recording of
George Floyd being murdered we would have been left with a police
report that states his death was caused by a medical distress. Before
your HR dept makes good on its threat to fire me for refusing to let it be,
for my refusal to accept [Company’s] “See no evil, Hear no Evil, Speak
no Evil” culture, let them realize that I still have the 2-minute clip
recording plus the entire recording. [Company] is not against anti-black
racism, only pretending to be so for the benefit of your IMAGE.

MDHR Order, ¶ 14.
5

A year later, Mr. Ntamere filed a charge of discrimination with the MDHR,
naming AHA as the respondent. [MDHR Order, ECF No. 4-2.] The MDHR investigated
the matter and determined that there was no probable cause to believe that discrimination
occurred.

[Id.]

Mr. Ntamere requested reconsideration, during which the MDHR

affirmed its earlier ruling. [MDHR Reconsideration at 1, ECF 4-4.] In doing so, the
MDHR explained that Mr. Ntamere’s allegations of discriminatory and retaliatory
treatment prior to his termination, along with his MHRA reprisal claim were untimely.
[Id. ¶¶ 20, 29.] The only timely claim before the MDHR was Mr. Ntamere’s retaliatory
discharge claim. [Id. ¶ 21.]
The MDHR also concluded that Mr. Ntamere’s June 8 and June 22 iWay postings
were “patently unreasonable and did not constitute protected activity” because “neither
posting was a serious attempt to report discriminatory treatment.” [Id. ¶ 24.] The
MDHR explained its finding that Mr. Ntamere’s iWay posts “were objectively
inflammatory and likely defamatory,” and were “clearly intended to shock his coworkers,
target the HR trainer, and embarrass his employer. [Id. ¶ 25.] Finally, the MDHR stated
that documentation showed that AHA took Mr. Ntamere’s complaint seriously and
thoroughly investigated it in August 2019. [Id. ¶ 24.] Because the iWay posts were not a
protected activity, the MDHR found that Mr. Ntamere was unable to “state a threshold
retaliatory discharge claim.” [Id. ¶ 26.]
Mr. Ntamere now brings this case against a variety of defendants, including AHA,
IBC, and several employees at AHA. In its motion, the Defendants request the Court
dismiss all allegations against them. The Court grants the motion.
6

II.

Analysis

The Defendants raise several arguments in support of dismissal. First, they argue
that the Court should dismiss the AHA individuals for lack of personal jurisdiction.
[Defs. Mem. in Supp. 8.] Defendants also argue that the Court should dismiss Counts 1,
2, and 3 of Mr. Ntamere’s Amended Complaint for failure to state a claim. As explained
below, the Court agrees in most respects.
A. Personal Jurisdiction
Defendants first move the Court to dismiss the AHA Individuals pursuant to
Federal Rule of Civil Procedure 12(b)(2), arguing that the Court lacks personal
jurisdiction over them. A plaintiff “must plead sufficient facts to support a reasonable
inference that the defendant can be subjected to jurisdiction within the state” in order to
survive a motion to dismiss for lack of personal jurisdiction.” Creative Calling Sols., Inc.
v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015).
A Minnesota federal court can only assume jurisdiction over a nonresident
defendant if doing so is permitted by Minnesota’s long-arm statute and by the Due
Process Clause. WinRed, Inc. v. Ellison, 581 F. Supp. 3d 1152, 1160 (D. Minn. 2022).
The Minnesota long-arm statute “confers jurisdiction to the fullest extent permitted by the
Due Process Clause,” so the Court need only consider due process requirements. Coen v.
Coen, 509 F.3d 900, 905 (8th Cir. 2007).
Due process requires defendants to have sufficient “minimum contacts” with the
forum state so that “maintenance of the suit does not offend traditional notions of fair
play and substantial justice.”

Sacks v. Univ. of Minn., 600 F. Supp. 3d 915, 935
7

(D. Minn. 2022) (citing Daimler AG v. Bauman, 571 U.S. 117, 126 (2014)). Having
sufficient minimum contacts means the defendant’s actions must create a substantial
connection with the forum state that would provide the defendant with fair notice “that
they may be subject to jurisdiction there.” Sacks, 600 F. Supp. 3d at 935 (citing Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985)) (cleaned up). This requirement
is met if a defendant has purposefully directed their activities at residents of the forum
state, and the litigation results from alleged injuries that arise out of or relate to those
activities. Id.
There are two types of personal jurisdiction: general and specific jurisdiction.
Higgins v. Save Our Heros, Civil No. 18-42 (DSD/BRT), 2018 WL 2208319, at *1
(D. Minn. May 14, 2018).

When a defendant's “affiliations with the state are so

continuous and systematic as to render it essentially at home in the forum State,” general
jurisdiction is established, regardless of the nature of the claim. Id. at *2 (quoting
Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (internal quotation marks omitted)).
However, claims relating to or arising from a defendant's activities within the forum state
may result in specific jurisdiction. Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741,
745–46 (8th Cir. 2011); see also Lakin v. Prudential Securities, Inc., 348 F.3d 704, 707
(8th Cir.2003) (determining that the cause of action in that case was “entirely unrelated to
[defendant's] activities in [the forum]”). The defendant must also “engage in activities in
the form that reveal an intent to invoke or benefit from the protection of its laws.”
Pangaea, Inc., 647 F.3d at 746 (quotation omitted); Laver v. Peal, 516 F. Supp. 3d 931,
934 (D. Minn. 2021) (explaining that when the cause of action results from or is
8

connected to a defendant’s actions within the forum state and the defendant “purposefully
avails itself of the privilege of conducting activities within the forum state,” specific
personal jurisdiction exists).
The Eighth Circuit considers five factors when determining whether personal
jurisdiction exists: “(1) the nature and quality of defendant’s contacts with the forum
state; (2) quantity of contacts; (3) source and connection of the cause of action with those
contacts; and to a lesser degree; (4) the interest of the forum state; and (5) the
convenience of the parties.” Higgins, 2018 WL 2208319, at *2 (quoting Wessels, Arnold
& Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1432 (8th Cir. 1995)). Because
Mr. Ntamere concedes that the Court lacks general jurisdiction over the AHA individuals,
its focus is on whether specific jurisdiction exists. The burden of proof is with the party
attempting to establish jurisdiction. See Westley v. Mann, 896 F. Supp. 2d 775, 786
(D. Minn. 2012). When the cause of action results from or is connected to a defendant's
actions within the forum state and the defendant “purposefully avails itself of the
privilege of conducting activities within the forum state,” specific personal jurisdiction
exists. Laver v. Peal, 516 F. Supp. 3d 931, 934 (D. Minn. 2021). The defendant’s
interactions “with the forum state must result from more than random, fortuitous, or
attenuated happenings.” Laver, 516 F. Supp. 3d at 935. To determine whether personal
jurisdiction exists, “[i]t is a defendant’s contacts with the forum state that are of interest .
. . not its contacts with a resident.” Mountaire Feeds, Inc. v. Agro Impex, S. A., 677 F.2d
651, 655 (8th Cir. 1982) (quoting Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal
Co., 558 F.2d 450, 455 n.6 (8th Cir. 1977)).
9

Defendants assert that Mr. Ntamere does not allege facts that satisfy his burden of
showing that the Court has specific jurisdiction over the AHA Individuals. Mr. Ntamere
counters that this litigation only arose due to those individuals’ conduct within
Minnesota.
The Court finds that Mr. Ntamere has not pleaded sufficient facts to allege that
this Court has specific jurisdiction over Ms. Waller, Mr. Clayton, or Ms. Schumacher.
According to the Complaint, Ms. Waller and Mr. Clayton were in Minnesota for the
training, and no other facts are alleged regarding any ties to Minnesota or conduct
undertaken in Minnesota, let alone purposeful availment.

[Am. Compl. ¶ 54.]

Mr. Ntamere does not allege that they made any racist statements to him, unlike his claim
about Kearns.

He also has not alleged that these individuals routinely came to or

conducted business in Minnesota, nor has he alleged that they have had any additional
contacts with Minnesota aside from the training.

The fact that some of the AHA

Individuals attended a training session is a single, random event within the forum state.
Their contact with Minnesota is nothing more than “random, fortuitous, or attenuated
happenings” and is insufficient to exercise personal jurisdiction over them. Laver, 516
F. Supp. 3d at 935. Moreover, Mr. Ntamere has not alleged anything pertaining to Ms.
Schumacher being in Minnesota, and she has not visited since October 2019.
[Schumacher Decl. ¶ 6.] Because Mr. Ntamere has not carried his burden to establish
specific personal jurisdiction, Ms. Waller, Mr. Clayton, and Ms. Schumacher are
dismissed from the case.

10

The Court reaches a different conclusion regarding Mr. Kearns, although the Court
dismisses the claims against him on other grounds. Though the allegations regarding
Mr. Kearns are somewhat limited, the Court finds that Mr. Ntamere has alleged enough
to show that Mr. Kearns is subject to this Court’s specific jurisdiction given that the claim
arguably “arises out of” Mr. Kearns’s contact with the forum. With respect to the nature
and quality of the contacts by Mr. Kearns with the forum state (Minnesota), the only
relevant contact Mr. Kearns had with the forum state was the incident that occurred at the
training where Mr. Ntamere alleges Mr. Kearns directed a racist comment toward him.
However, contrary to Defendants’ suggestions, a single contact with the forum state can
give rise to specific jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 490 n. 18
(1985) (“So long as it creates a ‘substantial connection’ with the forum, even a single act
can support jurisdiction.”). The Court finds that the assertion that Mr. Kearns allegedly
made a racist or derogatory comment toward Mr. Ntamere during a work training in
Minnesota is a substantial relevant connection. Mr. Kearns was at the training for work,
and Mr. Ntamere was required to attend the training due to his employment with AHA.
This is a substantial connection somewhat closely related to the complained-of conduct
that is significant enough to warrant the Court’s exercise of specific jurisdiction.
Furthermore, the alleged injury was at least indirectly related to Mr. Kearns’s contact
with the forum state and was directed at Minnesota residents.
With respect to the connection between the cause of action and the contacts, the
Court can reasonably say that this cause of action in some part arises from or is related to
Mr. Kearns’s actions with Minnesota.

The record shows that Mr. Kearns gave a
11

presentation at the training that Mr. Ntamere attended. The record also shows that
Mr. Ntamere believed he heard Mr. Kearns make a derogatory comment toward him. In
addition, the record demonstrates that Mr. Ntamere complained about the alleged
conduct, there was an inquiry, he posted about the occurrence, filed charges, and finally
filed a lawsuit as a result of the incident and its aftermath. The fair warning requirement
is satisfied if the defendant has purposefully directed his activities at residents of the
forum, and the litigation results from injuries that arise out of or relate to those activities.
Burger King Corp., 471 U.S. at 472–73. That requirement is satisfied by the allegations
here. Mr. Kearns could reasonably anticipate being haled into court in Minnesota, where
he attended a work training and allegedly made a racist comment toward Mr. Ntamere
while giving a presentation.
Finally, Minnesota has an interest in providing a forum to its residents, and it
would not be neither overly inconvenient nor extremely burdensome to require
Mr. Kearns and his witnesses to travel from his residence to Minnesota to resolve
Mr. Ntamere’s allegations. Therefore, the maintenance of an action against Mr. Kearns
would not offend traditional notions of fair play and substantial justice.

For these

reasons, the Court finds that it can exercise specific personal jurisdiction over
Mr. Kearns.
B. Failure to State a Claim
Defendants move to dismiss Counts 1, 2, and 3 of Mr. Ntamere’s Amended
Complaint, arguing that they fail to state a claim under Federal Rule of Civil Procedure

12

12(b)(6). 7 A plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). When the plaintiff
alleges factual information that enables the court to reasonably infer that the defendant is
liable for the claimed misbehavior, the claim has facial plausibility because “it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The Court is not required to accept “wholly conclusory
allegations, or unwarranted factual inferences” as true in order to give weight to
well-pleaded factual claims, or “blindly accept the legal conclusions drawn by the pleader
from the facts.” Helleloid v. Indep. Sch. Dist. No. 361, 149 F. Supp. 2d 863, 867
(D. Minn. 2001) (quoting Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.
1990)). To avoid dismissal, a complaint must include “enough facts to state a claim to
relief that is plausible on its face.” Markewich ex rel. Medtronic, Inc. v. Collins, 622
F. Supp. 2d 802, 806 (D. Minn. 2009) (citing Twombly, 550 U.S. at 570). If a plaintiff
has not pleaded facts entitling him to relief, “this basic deficiency should . . . be exposed
at the point of minimum expenditure of time and money by the parties and the court.”
Twombly, 550 U.S. at 558–59 (citations omitted).
As noted, a court may consider exhibits attached to the complaint, documents that
are necessarily embraced by the pleadings, and public records. Little Gem Life Scis., LLC
v. Orphan Med., Inc., 537 F.3d 913, 916 (8th Cir. 2008). These “include documents
Defendants also ask the Court find that Mr. Ntamere waived some of his claims
because he did not provide adequate argument on them. The Court acknowledges that
Mr. Ntamere’s briefing was inadequate, and also notes that he sought leave to provide
additional analysis. But because the claims are dismissed on substantive grounds, the
Court need not decide the issue of waiver.
7

13

whose contents are alleged in a complaint and whose authenticity no party questions, but
which are not physically attached to the pleading.” Ashanti v. City of Golden Valley, 666
F.3d 1148, 1151 (8th Cir. 2012) (quotations omitted). In this case, the documents and
audio recording Mr. Ntamere incorporated into his complaint were relevant to this
Court’s decision on the Motion to Dismiss.
1. Section 1983: Count 1
Defendants AHA seek to dismiss Mr. Ntamere’s 42 U.S.C. § 1983 claim on the
grounds that he has not alleged any misconduct on the part of AHA, and even if he had,
the claim still fails since AHA is a state actor.
Under § 1983, only state actors are subject to liability.

See Youngblood

v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001). To hold a private party
liable under Section 1983, the plaintiff must allege “that there was a mutual
understanding, or a meeting of the minds, between the private party and the state actor,”
which must be pleaded with “specificity and factual support.”

Cassell v. Cnty. of

Ramsey, Civil No. 15-2598 (PJS/JJK), 2015 WL 9590802, at *9 (D. Minn. Dec. 11,
2015) (quotations and citations omitted), report and recommendation adopted, 2015 WL
9581806 (D. Minn. Dec. 30, 2015). There are no allegations in the Complaint that AHA
was either acting as a state actor or working in concert with a state actor when it took the
actions complained of in the Complaint. Moreover, Count One does not describe any
specific actions taken by AHA but focuses entirely on MHRA and EEOC’s handling of
his Complaint.

Although federal courts liberally construe pro se pleadings, merely

alleging deprivation of a federal constitutional right, without more, is not enough to state
14

a claim. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980) (liberal construction
of pro se pleadings required, but they cannot be merely conclusory). For these reasons,
the Court dismisses Count 1 with prejudice.
2. Section 1981: Counts 2 and 3
Mr. Ntamere raises two claims under 42 U.S.C. § 1981. He first alleges racial
discrimination against IBC, AHA, Jeffrey Kearns, John Clayton, and Tashima Waller.
He also alleges retaliation against IBC and AHA. Defendants argue that both counts fail
because Mr. Ntamere has not pleaded a contractual interest and has not pleaded plausible
facts that would support either claim. The Court finds that Mr. Ntamere did adequately
plead a contractual interest, but he otherwise fails to allege a viable claim for either
discrimination or retaliation under § 1981.
Count 2 – Discrimination
Under § 1981, all persons have the same right to “make and enforce contracts . . .
as is enjoyed by white citizens,” which includes the right to “the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. §
1981(a)–(b). However, § 1981 “does not provide a general cause of action for race
discrimination.” Gregory v. Dillard’s, Inc., 565 F.3d 464, 468 (8th Cir. 2009). Rather, it
prohibits racial discrimination arising out of a contractual relationship. Id.; see also 42
U.S.C. § 1981. An individual “cannot state a claim under § 1981 unless he has or would
have rights under the existing or proposed contract that he wishes to make and enforce.”
Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006). Plaintiffs under § 1981
“must identify injuries flowing from a racially motivated breach of their own contractual
15

relationship.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. at 480. The defendants argue
that Mr. Ntamere failed to allege the required contractual relationship. However, their
application of the requirements for alleging a contract under § 1981 is too narrow.
The Eighth Circuit has held that “an at-will employee, employed without a written
contract in an agreement terminable at will by either party, has a “contract” within the
meaning of civil rights statute guaranteeing equal rights to make and enforce contracts.”
Singletary v. Missouri Dep't of Corr., 423 F.3d 886, 890 n.3 (8th Cir. 2005) (quoting
Skinner v. Maritz, Inc., 253 F.3d 337, 339 (8th Cir.2001)); see also Turner v. Arkansas
Ins. Dept., 297 F.3d 751, 759 (8th Cir.2002) (concluding that it is “clearly established”
that Section 1981 permits at-will employees to file a claim for employment
discrimination). Consequently, Mr. Ntamere, who clearly alleges he was an employee of
IBC and AHA, has adequately plead a contractual interest under § 1981.
Although Mr. Ntamere has pleaded a contractual interest, his § 1981 claims
nevertheless fail. To succeed at this stage, Mr. Ntamere must plead facts plausibly
showing unlawful discrimination, not mere speculation of discriminatory intent on the
defendants’ part, to create a prima facie case under § 1981. Yang v. Robert Half Int'l,
Inc., 79 F.4th 949, 962 (8th Cir. 2023) (affirming grant of motion to dismiss on the
grounds that plaintiff failed to allege discriminatory intent). Specifically, a complaint
must allege (1) membership in a protected class; (2) discriminatory intent by the
defendant; (3) that the plaintiff was engaged in a protected activity; and (4) the defendant
interfered with that activity. Yang, 79 F.4th at 962. The Supreme Court has held that to
survive a motion to dismiss, a complaint raising a § 1981 claim must plausibly allege that
16

“but for race,” the complained-of interference with the contract would not have occurred.
Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020).
Mr. Ntamere has failed to plausibly plead the required discriminatory intent.
Certainly, in his Complaint, Mr. Ntamere discusses race.

Most critically,

Mr. Ntamere asserts that he was in earshot of Mr. Kearns’ alleged use of a racial slur.
However, he has not plausibly alleged that any of the defendants interfered with his
contractual activity or that he sustained injuries flowing from a racially motivated breach
of a contractual relationship. [Am. Compl. ¶ 57]; see also Domino’s, 546 U.S. at 480.
After the incident, Mr. Ntamere reported his experience, and the matter was investigated.
[ECF 4-4 at 2, 4 n. 8.] Mr. Ntamere has not alleged that Defendants interfered with his
reporting. When Mr. Ntamere was placed on probation, it was because he violated
company policy regarding audio recordings.

He does not plausibly allege that his

supervisors placed him on probation due to his race, but alleges that he was placed on
probation for recording a coworker using what he believed was a racial slur. That does
not satisfy the requirement for alleging but-for causation.
Mr. Ntamere also claims discrimination arising out of his termination in 2020, but
this claim fails for similar reasons. Mr. Ntamere fails to plausibly allege or explain in
any way that his termination was racially motivated. The documents he submits with his
complaint demonstrate that Mr. Ntamere was terminated for non-racially discriminatory
reasons, specifically his repeated violations of his company policy and his misuse of the
iWay postings. And none of the documents even hint at a racially motivated basis for his
discipline or termination. Moreover, nowhere does Mr. Ntamere identify any similarly
17

situated person of a different race whom he asserts received more favorable treatment
than he did. Glover v. Am. Credit Acceptance, 2023 WL 158198, at *6 (dismissing
§ 1981 claims where the plaintiff failed to plead “any circumstantial facts that suggest
Defendants intended to discriminate against him on the basis of race” including failing to
allege any similarly situated persons of other races received more favorable treatment).
Because Mr. Ntamere has not alleged plausible facts to sustain a prima facie § 1981
claim, he cannot meet the foundational element of the test.
When a plaintiff is unable to adequately allege direct discrimination in support of
a § 1981 claim, the Eighth Circuit has held that the burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06 (1973), can be considered.
Gibson v. Graphic Packaging Int'l, Inc., No. 5:15-CV-00386 BSM, 2017 WL 3444701,
at *6 (E.D. Ark. Aug. 10, 2017). Under this framework, the plaintiff must first establish
a prima facie case, after which the burden shifts to the defendant to show a legitimate,
nondiscriminatory reason for the challenged action. Harris v. Hays, 452 F.3d 714, 717
(8th Cir. 2006). In order to establish a prima facie case for race discrimination, “a
plaintiff must show (1) he is a member of a protected class, (2) he met his employer's
legitimate expectations, (3) he suffered an adverse employment action, and (4) the
circumstances give rise to an inference of discrimination.” Young v. Builders Steel Co.,
754 F.3d 573, 577 (8th Cir. 2014) (quoting Gibson, 670 F.3d at 853–54 (internal
quotations omitted). Although a plaintiff need not allege every aspect of a prima facie
case in the Complaint, the elements of the test can inform whether a plaintiff has

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plausibly alleged a violation of § 1981.

Smith v. Arkansas Highway Police, No.

4:13CV00301 JLH, 2013 WL 12320409, at *5 (E.D. Ark. Oct. 7, 2013).
Even with the flexibility afforded by the burden-shifting scheme, Mr. Ntamere
fails to allege discrimination in violation of § 1981. Mr. Ntamere belongs to a protected
class and was subjected to an adverse employment action as a result of his termination.
But given his repeated violations of company policy and improper iWay postings, and
documents in the records he submitted, he fails to plausibly allege that he met his
employer’s legitimate expectations. And as explained above, there are simply no facts
alleged that give rise to an inference of discrimination. As a result, the Court dismisses
Count 2.
The Court dismisses the § 1981 claims against Mr. Kearns, Mr. Clayton, and
Ms. Waller for another reason as well. Section 1981 does not provide a cause of action
against coworkers. See Yang v. Robert Half Int’l, Inc., Case No. 19-cv-2669 (NEB/DTS),
2020 WL 5366771, at *4 (D. Minn. Sept. 8, 2020) (exploring relevant decisions and
concluding that coworkers are not proper defendants under § 1981 unless they exercise
supervisory authority). Mr. Ntamere has not alleged these individuals had supervisory
authority over him, and as a result, his § 1981 claims against them are dismissed.
Count 3 – Retaliation
Defendants similarly argue that the Court should dismiss Count 3, which alleges
retaliation under § 1981 because Mr. Ntamere fails to plausibly plead a prima facie case.
The Court again agrees.

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As with his discrimination claim, the McDonnell-Douglas analytical framework
can be applied to his retaliation claim. Mr. Ntamere must allege: “(1) protected activity,
(2) subsequent adverse employment action, and (3) a causal relationship between the
two.” Onyiah v. St. Cloud State Univ., 5 F.4th 926, 930 (8th Cir. 2021). Once the
plaintiff has met this preliminary showing, the defendant needs to demonstrate that the
employment actions being contested were motivated by lawful, non-retaliatory factors.
Onyiah, 5 F.4th at 930. In order to establish a causal connection, the plaintiff is required
to demonstrate that the unlawful retaliation would not have taken place in the absence of
the alleged wrongful conduct or actions of his employer, or that the intention to retaliate
was the but-for cause of his termination. Sayger v. Riceland Foods, Inc., 735 F.3d 1025,
1032 (8th Cir. 2013).
In Count 3, Mr. Ntamere alleges retaliation under § 1981 for: (1) placing him on
probation in 2019 for violating company policy by surreptitiously recording the training
session without receiving permission; (2) advising him that the proper channel for
complaints was to human resources or the compliance hotline and not, as a starting point,
the General Counsel’s office; (3) placing him on probation in 2020 after making his first
inappropriate posting on iWay; and (4) terminating his employment after he ignored
company directives and made a second iWay posting. [Am. Compl. ¶ 118.] But these
allegations are not enough to support a claim for relief, nor to survive a motion to
dismiss. Mr. Ntamere fails to plausibly allege that the complained-of actions were done
to retaliate for protected activity.

Indeed, not all complaints about the conduct of

coworkers or the company constitute protected activity. See, e.g., Argyropoulos v. City of
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Alton, 539 F.3d 724, 733–34 (7th Cir. 2008) (noting that Title VII’s retaliation provision
“does not grant the aggrieved employee a license to engage in dubious self-help tactics or
workplace espionage in order to gather evidence of discrimination.”); Gogel v. Kia
Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1139–41 (11th Cir. 2020) (en banc)
(observing that employee conduct in complaining about a workplace issue can “be
deemed unreasonable thereby lose its protected status—if the opposition is expressed in a
manner that unreasonably disputes other employees or the workplace in general.”)
Here, even Mr. Ntamere’s allegations themselves demonstrate that he was not
disciplined and ultimately terminated for protected workplace activities, but for
prohibited conduct like secretly recording his coworkers; using iWay to relitigate an
earlier addressed issue; and again, posting such matters on iWay despite being
specifically warned against doing so. These actions are not protected, and he cannot
plead the first element of his claim. Moreover, the one protected step he took—filing a
complaint to the company and the EEOC—took place well before his termination and
itself resulted in no alleged retaliation.
In sum, Mr. Ntamere fails to plausibly allege that he was disciplined for protected
activity, and his § 1981 retaliation claim must be dismissed.
C. Supplemental Jurisdiction
Having dismissed Counts 1, 2, and 3, the Court dismisses Counts 4 through 7
because it lacks subject matter jurisdiction over these claims, which are all based on state

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law. 8 See Fed. R. Civ. P. 12(b)(1). The Court does not have subject matter jurisdiction
over the remaining state law claims because “[f]ederal courts are courts of limited
jurisdiction and the ‘threshold requirement in every federal case is jurisdiction.’”
Barclay Square Properties v. Midwest Fed. Sav. & Loan Ass’n of Minneapolis, 893 F.2d
968, 969 (8th Cir. 1990) (quoting Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.
1987)). And district courts generally decline to exercise supplemental jurisdiction over a
claim if “the district court has dismissed all claims over which it has original
jurisdiction,” and the “Eighth Circuit has instructed district courts not to exercise
supplemental jurisdiction over state-law claims when . . . all federal claims are dismissed
well before trial.” Sacks, 600 F. Supp. 3d at 944 (citing Hervey v. Cnty. of Koochiching,
527 F.3d 711, 726–27 (8th Cir. 2008)); see also 28 U.S.C. § 1367(c). Because the Court
has dismissed Mr. Ntamere’s federal claims and this case is at a relatively early stage, it
declines to exercise supplemental jurisdiction over the state claims.

Mr. Ntamere has not alleged diversity jurisdiction. Instead, his Complaint
specifically alleges federal question jurisdiction. [Am. Compl., ECF No. 4.]
8

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III.

Order

For the foregoing reasons, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion to Dismiss [ECF No. 14] is GRANTED as follows:
a. Plaintiff’s claims against John Clayton, Tashima Waller, and
Michele Schumacher, but not Jeffrey Kearns, are dismissed without
prejudice for lack of personal jurisdiction.
b. Plaintiff’s § 1983 claim against the AHA are dismissed with
prejudice for failure to state a claim.
c. Plaintiff’s § 1981 discrimination claim against IBC, AHA, Jeffrey
Kearns, John Clayton, and Tashima Waller are dismissed with
prejudice for failure to state a claim.
d. Plaintiff’s § 1981 retaliation claim against IBC and AHA are
dismissed with prejudice for failure to state a claim.
e. Plaintiff’s state law claims are dismissed without prejudice as the
Court lacks subject matter jurisdiction over the claims.

2.

Plaintiff’s Motion to File a Surreply [ECF No. 47] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: November 14, 2023

s/Katherine Menendez

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