Clay v. United Parcel Service, No. 2:2013cv02240 - Document 31 (D. Kan. 2013)

Court Description: MEMORANDUM AND ORDER granting in part and denying in part 26 Motion to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 10/24/2013. Mailed to pro se party Daniel Wayne Clay by regular & certified mail; Certified Tracking Number: 7010 2780 0003 1927 0667. (mb)

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Clay v. United Parcel Service Doc. 31 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS DANI EL WAYNE CLAY, Plaint iff, v. No. 13- 2240- SAC UNI TED PARCEL SERVI CE, I NC., Defendant . MEMORANDUM AND ORDER This em ploym ent discrim inat ion case com es before t he Court on Defendant ’s m ot ion t o dism iss Plaint iff’s am ended com plaint for failure t o st at e a claim and for lack of j urisdict ion. Plaint iff, act ing pro so, opposes t he m ot ion. I . M ot ion t o D ism iss St a n da r ds “ The court 's funct ion on a Rule 12( b) ( 6) m ot ion is not t o w eigh pot ent ial evidence t hat t he part ies m ight present at t rial, but t o assess whet her t he plaint iff's ... com plaint alone is legally sufficient t o st at e a claim for which relief m ay be grant ed.” Miller v. Glanz, 948 F.2d 1562, 1565 ( 10t h Cir. 1991) . The court accept s all well- pled fact ual allegat ions as t rue and views t hese allegat ions in t he light m ost favorable t o t he nonm oving part y. Unit ed St at es v. Sm it h, 561 F.3d 1090, 1098 ( 10t h Cir. 2009) , cert . denied, 130 S.Ct . 1142 ( 2010) . The court , however, is not under a dut y t o accept Dockets.Justia.com legal conclusions as t rue. Ashcroft v. I qbal, 556 U.S. 662, 129 S.Ct . 1937, 1949, 173 L.Ed.2d 868, 884 ( 2009) . “ Thus, m ere ‘labels and conclusions' and ‘form ulaic recit at ion of t he elem ent s of a cause of act ion’ will not suffice.” Khalik v. Unit ed Air Lines, 671 F.3d 1188, 2012 WL 364058, at * 2 ( 10t h Cir. Feb. 6, 2012) ( quot ing Bell At lant ic Corp. v. Tw om bly, 550 U.S. 544, 555 ( 2007) ) . The Suprem e Court recent ly clarified t he requirem ent of facial plausibilit y: To survive a m ot ion t o dism iss, a com plaint m ust cont ain sufficient fact ual m at t er, accept ed as t rue, t o “ st at e a claim for relief t hat is plausible on it s face.” I d. [ Bell At l. Corp. v. Twom bly, 550 U.S. 544, 570 ( 2007) ) at 570. A claim has facial plausibilit y when t he plaint iff pleads fact ual cont ent t hat allows t he court t o draw t he reasonable inference t hat t he Defendant is liable for t he m isconduct alleged. I d. at 556. The plausibilit y st andard is not akin t o a “ probabilit y requirem ent ,” but it asks for m ore t han a sheer possibilit y t hat a Defendant has act ed unlawfully. I d. Where a com plaint pleads fact s t hat are “ m erely consist ent wit h” a Defendant 's liabilit y, it “ st ops short of t he line bet ween possibilit y and plausibilit y of ‘ent it lem ent t o relief.’“ I d. at 557. I qbal, 129 S.Ct . at 1949. “ Threadbare recit als of t he elem ent s of a cause of act ion, support ed by m ere conclusory st at em ent s, do not suffice.” I d. “ [ C] ourt s should look t o t he specific allegat ions in t he com plaint t o det erm ine whet her t hey plausibly support a legal claim for relief.” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 ( 10t h Cir. 2007) . “ While t he 12( b) ( 6) st andard does not require t hat Plaint iff est ablish a prim a facie case in [ his] com plaint , t he elem ent s of each alleged cause of act ion help t o 2 det erm ine whet her Plaint iff has set fort h a plausible claim .” Khalik, 2012 WL 364058, at * 3 ( cit at ions om it t ed) . A court liberally const rues a pro se com plaint and applies “ less st ringent st andards t han form al pleadings draft ed by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 ( 2007) . Nonet heless, a pro se lit igant 's “ conclusory allegat ions wit hout support ing fact ual averm ent s are insufficient t o st at e a claim upon which relief can be based.” Hall v. Bellm on, 935 F.2d 1106, 1110 ( 10t h Cir. 1991) . The court “ will not supply addit ional fact ual allegat ions t o round out a plaint iff's com plaint or const ruct a legal t heory on a plaint iff's behalf.” Whit ney v. New Mexico, 113 F.3d 1170, 1173–74 ( 10t h Cir. 1997) . M a t t e r s Ou t side t h e Ple a din g I n evaluat ing a Rule 12( b) ( 6) m ot ion t o dism iss, t he court is lim it ed t o assessing t he legal sufficiency of t he allegat ions cont ained wit hin t he four corners of t he com plaint . Archulet a v. Wagner, 523 F.3d 1278, 1281 ( 10t h Cir. 2008) . But in considering t he com plaint in it s ent iret y, t he Court also exam ines docum ent s “ incorporat ed int o t he com plaint by reference,” Tellabs, I nc. v. Makor I ssues & Right s, Lt d., 551 U.S. 308, 322 ( 2007) , and docum ent s at t ached t o t he com plaint , Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 ( 10t h Cir. 2012) ( quot at ions and cit at ions om it t ed) . Plaint iff has at t ached a num ber of docum ent s t o his Am ended Com plaint , including his original com plaint , grievance form s, his EEOC charge and not ice of right 3 t o sue, and various not es. I n deciding t his m ot ion, t he Court considers all at t achm ent s t o be part of t he com plaint . See Rosenfield, 681 F.3d at 1189. I I . Fa ct s Neit her part y has set fort h a coherent chronology of t he crucial event s during Plaint iff’s em ploym ent which give rise t o t his case. Accordingly, t he court m erely offers a sum m ary gleaned from t he pleadings. Defendant init ially hired Plaint iff in January of 2004 as a ut ilit y worker, and Plaint iff st ayed in t hat posit ion t hroughout his em ploym ent . Defendant discharged and reinst at ed Plaint iff one or m ore t im es before finally discharging Plaint iff on March 12, 2013 for t he st at ed reason t hat he violat ed Defendant ’s Workplace Violence policy. Defendant found t hat Plaint iff had a verbal alt ercat ion and t hreat ed a coworker in t he em ployee parking lot on March 8, 2013, so discharged Plaint iff pursuant t o Art icle 17( i) of Defendant ’s Supplem ent al Agreem ent wit h t he Cent ral Region of Team st ers. That art icle generally prohibit s Defendant from discharging an em ployee wit hout first issuing a warning let t er and providing a hearing, subj ect t o cert ain enum erat ed except ions and t o subsect ion ( i) - a cat ch- all except ion for “ ot her serious offenses.” 4 The Court t akes j udicial not ice 1 of t he fact s included in t he following int erpret at ion of 17( i) by Shawnee Count y Judge Hendricks, who exam ined it when Plaint iff sought unem ploym ent benefit s aft er Defendant discharged him in Sept em ber of 2012 pursuant t o t hat subsect ion. Art icle 17 of t he Supplem ent al Agreem ent is designed t o ensure t hat em ployees are not discharged before receiving “ a warning let t er of a com plaint .” Art icle 17 also set s out several except ions t o t his general provision, which include specific conduct t hat is so severe and offensive t hat an im m ediat e discharge is appropriat e. Som e of t hese except ions include t aking m oney from t he com pany, consum ing alcohol or narcot ics during t he workday, and gross negligence result ing in a serious accident . Therefore, t he cat ch- all except ion list ed in subsect ion ( i) of Art icle 17, “ ot her serious offenses,” which is cit ed t o as t he reason for Mr. Clay’s discharge, refers t o ot her conduct so severe t hat t o m erely issue a warning would not be sufficient t o ensure t he safet y of t he com pany’s em ployees and business operat ions. Clay v. Kansas Em ploym ent Sec. Bd. of Review , Dk. 28, p. 17. Plaint iff filed an EEOC charge t he day aft er his March 12, 2013 t erm inat ion, com plaining of race discrim inat ion, sex discrim inat ion, and ret aliat ion, and t he EEOC swift ly not iced Plaint iff of his right t o sue. Plaint iff t im ely filed t his lawsuit . His am ended com plaint seeks dam ages and an inj unct ion for Defendant ’s alleged violat ion of Tit le VI I , 42 USC § 1981, and Kansas st at e law. Plaint iff alleges Defendant discrim inat ed against him based on his race ( African Am erican) and sex and ret aliat ed against him by t erm inat ing his em ploym ent because of his com plaint s about discrim inat ion. 1 A court m ay t ake j udicial not ice of fact s which are a m at t er of public record, Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 ( 10t h Cir. 2006) , and of st at e court docum ent s. Pace v. Swerdlow, 519 F.3d 1067, 1072–73 ( 10t h Cir. 2008) . Addit ionally, t his st at e court docum ent relat es t o t hese part ies and is at t ached t o Plaint iff’s response t o Defendant ’s present m ot ion. See Dk. 28, p. 13- 20. 5 I I I . Ex h a u st ion of Adm in ist r a t ive Re m e die s “ Exhaust ion of adm inist rat ive rem edies is a j urisdict ional prerequisit e t o suit under Tit le VI I .” Jones v. Runyon, 91 F.3d 1398, 1399 ( 10t h Cir. 1996) ( int ernal quot at ion m arks om it t ed) . The Plaint iff bears t he burden t o est ablish t he court 's subj ect - m at t er j urisdict ion. See Sout hway v. Cent . Bank of Nigeria, 328 F.3d 1267, 1274 ( 10t h Cir. 2003) . “ A plaint iff's claim in federal court is generally lim it ed by t he scope of t he adm inist rat ive invest igat ion t hat can reasonably be expect ed t o follow t he charge of discrim inat ion subm it t ed t o t he EEOC.” Jones v. U.P.S., I nc., 502 F.3d 1176, 1186 ( 10t h Cir. 2007) , quot ing MacKenzie v. Cit y and Count y of Denver, 414 F.3d 1266, 1274 ( 10t h Cir. 2005) . Thus, t o exhaust adm inist rat ive rem edies, “ t he charge m ust cont ain fact s concerning t he discrim inat ory and ret aliat ory act ions underlying each claim [ , because] each discret e incident of alleged discrim inat ion or ret aliat ion const it ut es it s own unlawful em ploym ent pract ice for which adm inist rat ive rem edies m ust be exhaust ed.” Manning v. Blue Cross and Blue Shield of Kansas Cit y , 522 Fed.Appx. 438 ( 10t h Cir. 2013) , quot ing Jones v. UPS, I nc., 502 F.3d 1176, 1186 ( 10t h Cir. 2007) ( int ernal quot at ion m arks om it t ed) . The Court liberally const rues charges filed wit h t he EEOC in det erm ining whet her adm inist rat ive rem edies have been exhaust ed as t o a part icular claim . Jones, 502 F.3d at 1186. The Court has an independent dut y t o exam ine whet her it has subj ect m at t er j urisdict ion, and such j urisdict ion is lacking when a Tit le VI I plaint iff 6 has not exhaust ed adm inist rat ive rem edies. Manning, 522 Fed. Appx. at 441. See Shikles v. Sprint / Unit ed Mgm t . Co., 426 F.3d 1304, 1317 ( 10t h Cir. 2005) ( holding t hat exhaust ion of adm inist rat ive rem edies is a j urisdict ional prerequisit e t o suit under t he ADEA and Tit le VI I ) . EEOC Ch a r ge Plaint iff’s EEOC charge alleges ret aliat ion, and discrim inat ion based on race and sex. I t s narrat ive sect ion st at es only t he following: I was em ployed January 12, 2004, t hrough March 12, 2013, working as a Ut ilit y Worker. Since m y ret urn t o work on January 21, 2013, I have been subj ect ed t o racial discrim inat ion based on com m ent s m ade t o m e or t hat I have heard. I also m ade com plaint s against m y supervisor for a writ es ( sic) he issued t o m e for insubordinat ion. I was sexually harassed in Sept em ber of 2012, by a coworker when I was pulling a t railer int o t he bay. He m ade a com m ent about his “ Dick” being long and I report ed it t o Managem ent . Managem ent t ook no act ion based on m y com plaint . On March 12, 2013, I was discharged for a violat ion of t he Code of Conduct “ Workplace Violence.” I was subj ect ed t o sexual harassm ent , racial com m ent s and discharged in ret aliat ion for m y previous com plaint s of discrim inat ion in violat ion of Tit le VI I of t he Civil Right s Act of 1964, as am ended. Am ended Com plaint , Dk. 24, p.46. This lat t er sent ence is wholly conclusory and adds no fact ual basis t o t he charge. I V. Fe de r a l Cla im s Plaint iff brings various federal claim s under Tit le VI I and 42 USC § 1981. 7 A. Ra cia l Te r m in a t ion 1 . Tit le V I I The sole allegat ion in Plaint iff’s EEOC charge relevant t o t erm inat ion is t hat on a specific dat e, Plaint iff “ was discharged for a violat ion of t he Code of Conduct “ Workplace Violence.” Even if one liberally const rues t his language t o refer t o t he given reason for Plaint iff’s discharge inst ead of t o t he agreed reason for it , no fact s included in Plaint iff’s EEOC charge would reasonably lead t he EEOC t o invest igat e a claim of race- based t erm inat ion. This Court t herefore lacks j urisdict ion over Plaint iff’s Tit le VI I t erm inat ion claim . 2. § 1981 Sect ion 1981 cont ains no exhaust ion requirem ent , and applies t o claim s of racial t erm inat ion. The Court t hus exam ines Defendant ’s cont ent ion t hat t he com plaint fails t o st at e a claim . Alt hough t he 12( b) ( 6) st andard does not require t hat Plaint iff est ablish a prim a facie case in his com plaint , exam ining t he com plaint in light of t he elem ent s of each alleged cause of act ion helps t he Court det erm ine whet her Plaint iff has set fort h a plausible claim . Khalik, 671 F.3d at 1192. I n racial discrim inat ion suit s brought under § 1981 or Tit le VI I , t he elem ent s of a plaint iff's case are t he sam e, based on t he disparat e t reat m ent elem ent s out lined in McDonnell Douglas. Drake v. Cit y of Fort Collins, 927 F.2d 1156, 1162 ( 10t h Cir. 1991) . To m ake a prim a facie case of racial t erm inat ion absent direct evidence, a plaint iff m ust generally dem onst rat e: 8 ( 1) he was a m em ber of a prot ect ed class; ( 2) he was qualified and sat isfact orily perform ing his j ob; and ( 3) he was t erm inat ed under circum st ances giving rise t o an inference of discrim inat ion. Barlow v. C.R. England, I nc., 703 F.3d 497, 505 ( 10t h Cir. 2012) . An inference of discrim inat ion m ay be shown in various ways, including “ act ions or rem arks m ade by decisionm akers,” “ preferent ial t reat m ent given t o em ployees out side t he prot ect ed class,” or “ t he t im ing or sequence of event s leading t o plaint iff's t erm inat ion.” Plot ke v. Whit e, 405 F.3d 1092, 1101 ( 10t h Cir. 2005) . Defendant alleges t hat t he am ended com plaint fails t o include any fact s support ing a claim of racial t erm inat ion. But t he Court reads t he am ended com plaint t o allege t hat he was t erm inat ed in 2013 because of a verbal alt ercat ion wit h a whit e co- worker but t hat co- worker was not t erm inat ed, t hat t he workplace violence policy or Art icle 17( i) was applied m ore st ringent ly t o him t han t o persons of ot her races, and t hat t he alt ercat ion leading t o his t erm inat ion occurred in t he parking lot . Dk. 24, p. 29. This lat t er fact is relevant because Plaint iff had earlier com plained t hat he considered a confederat e flag license plat e on an em ployee’s car in t he parking lot t o be racist , but m anagem ent responded by saying Defendant ’s aut horit y t o discipline did not ext end t o t he parking lot . These and ot her assert ions in t he am ended com plaint are sufficient , when read in t he light 9 m ost favorable t o t he Plaint iff, t o st at e a facially plausible claim of racial t erm inat ion under § 1981. Defendant cont ends t hat Plaint iff has not shown t hat t he whit e em ployee involved in t he verbal alt ercat ion which led t o Plaint iff’s t erm inat ion was sim ilarly sit uat ed t o t he Plaint iff, but t hat issue is m ore appropriat ely addressed in t his case at t he sum m ary j udgm ent st age. B. Fa ilu r e t o Pr om ot e 1 . Tit le V I I Defendant not es t hat Plaint iff’s failure t o prom ot e claim was not included in Plaint iff’s EEOC charge, so cont ends t hat it fails t o m eet t he adm inist rat ive exhaust ion requirem ent of Tit le VI I . The Court agrees. Not hing in Plaint iff’s EEOC charge would reasonably have t riggered an EEOC invest igat ion of Plaint iff’s failure t o prom ot e claim . This Tit le VI I claim is t hus dism issed for lack of j urisdict ion. 2. § 1981 Failure t o prom ot e claim s are act ionable under § 1981 only when t he prom ot ion would have result ed in a “ new and dist inct relat ion bet ween t he em ployee and t he em ployer.” Pat t erson, 491 U.S. at 185, 109 S.Ct . at 2377. Defendant does not cont end t hat Plaint iff’s failure t o prom ot e claim is not act ionable, but alleges t hat Plaint iff’s claim of racial failure t o prom ot e is wholly conclusory and wit hout fact ual basis. 10 But t he Am ended Com plaint does include som e fact s relat ive t o t his claim . A grievance alleges t hat on or about August 8, 2006, Mr. Ables t ook Plaint iff out of t raining wit hout having given him 120 days t o qualify, in violat ion of an alleged provision t hat ut ilit y em ployees shall have a 120- day t raining program t o qualify as a “ t railer repair person.” Dk. 24, p. 38. Plaint iff argues in his brief t hat Mr. Ables condit ioned Plaint iff’s cont inued em ploym ent as a ut ilit y em ployee on Plaint iff’s agreem ent never t o t rain as a repairm an, and t his allegedly precluded Plaint iff’s subsequent chances for prom ot ion. Dk. 28, p. 11. This failure- t o- prom ot e claim about event s occurring in 2006 raises t he issue of t im eliness. Sect ion 1981 does not provide a specific st at ut e of lim it at ions, but cases hold t hat eit her a t wo- year or a four- year lim it at ions applies. See Brown v. Unified Sch. Dist . No. 501, 465 F.3d 1184, 1188 ( 10t h Cir. 2006) ( holding t wo- year st at ut e of lim it at ions for personal inj ury act ions in K.S.A. § 60–513( a) applies t o civil right s claim s under 42 U.S.C. § 1981) . [ C] laim s under § 1981 relying upon discrim inat ion in cont ract form at ion, which were act ionable prior t o t he 1991 am endm ent , would be governed by residual st at e st at ut es of lim it at ions.... Claim s relying upon an em ployer's post - form at ion conduct , however, would be subj ect t o t he four- year st at ut e of lim it at ions under § 1658, because t hey were m ade possible by t he 1991 am endm ent . Cross v. Hom e Depot , 390 F.3d 1283, 1288 ( 10t h Cir. 2004) ( cit ing Pat t erson v. McLean Credit Union, 491 U.S. 164, 177–78, 109 S.Ct . 2363, 105 L.Ed.2d 132 ( 1989) ) . Plaint iff’s lawsuit was filed in 2013, far beyond even a four- year st at ut e of lim it at ions, so is unt im ely. 11 Even if one assum es t hat t he negat ive effect s of t he 2006 event cont inued t hrough t he dat e of his 2013 t erm inat ion, Plaint iff’s claim is not rendered t im ely because t he cont inuing violat ion t heory does not apply t o § 1981 claim s. Harris v. Allst at e I ns. Co., 300 F.3d 1183, 1193 n. 2 ( 10t h Cir. 2002) , cit ing Thom as v. Denny's, I nc., 111 F.3d 1506, 1514 ( 10t h Cir.) , cert . denied, 522 U.S. 1028 ( 1997) . Plaint iff’s § 1981 claim for failure t o prom ot e shall t herefore be dism issed as unt im ely. But even if t he m erit s of t his claim were properly before t he Court , no facially plausible claim is st at ed. To est ablish a prim a facie case for failure t o prom ot e, t he plaint iff m ust dem onst rat e ( 1) he was a m em ber of a prot ect ed class; ( 2) he applied for and was qualified for t he posit ion; ( 3) despit e being qualified he was rej ect ed; and ( 4) aft er he was rej ect ed, t he posit ion was filled by som eone out side t he prot ect ed class. MacKenzie v. Cit y and Count y of Denver, 414 F.3d 1266, 1278 ( 10t h Cir. 2005) . Plaint iff’s pleading fails t o allege t hat Abel’s decision was based on Plaint iff’s race or ot her prot ect ed class and creat es no inference of illegal failure t o prom ot e. C. D ispa r a t e I m pa ct Plaint iff’s brief alleges t hat t he m em bers of t he grievance board are all whit e em ployees of t he labor depart m ent , t hat t he grievance process negat ively im pact s m inorit y em ployees because African- Am erican em ployees prevail less oft en t han do Caucasian em ployees, and t hat t he process for select ion of m em bers of t he grievance board is discrim inat ory. 12 1 . Tit le V I I Plaint iff’s EEOC charge never m ent ions t his claim or lays out any fact ual predicat e for any claim of disparat e im pact . Accordingly, t his court lacks j urisdict ion t o ent ert ain t his Tit le VI I claim . See Leo v. Garm in I nt ern., I nc., 431 Fed.Appx. 702 ( 10t h Cir. 2011) ( affirm ing dism issal of disparat e im pact claim for failure t o exhaust ; finding am endm ent t o rest at e claim s for disparat e im pact would be fut ile) . 2. § 1981 Sect ion 1981 requires purposeful discrim inat ion so does not apply t o disparat e im pact claim s t hat do not raise a presum pt ion of such a discrim inat ory purpose. Drake v. Cit y of Fort Collins, 927 F.2d 1156, 1162 ( 10t h Cir. 1991) . See New Mexico ex rel. Candelaria v. Cit y of Albuquerque, 768 F.2d 1207, 1209 ( 10t h Cir. 1985) . Plaint iff’s disparat e im pact claim about t he select ion and com posit ion of t he grievance board raises no such presum pt ion, so is not act ionable under § 1981. This claim m ust be dism issed. D . H ost ile W or k Envir on m e n t 1 . Tit le V I I The Court liberally const rues t he EEOC charge t o adequat ely include a claim for host ile work environm ent based on sex and race. See Hunt v. Riverside Transp., I nc., __ Fed.Appx.__, 2013 WL 4750764 ( 10t h Cir. 2013) . Alt hough t he det ails in t he EEOC charge are scant , t hey are arguably 13 sufficient t o put t he EEOC on not ice t hat Plaint iff int ended t o st at e a claim of prohibit ed racial harassm ent , warrant ing it s invest igat ion of such a claim . 2 . Tit le V I I / 1 9 8 1 Racial harassm ent is act ionable under § 1981 aft er t he 1991 revisions t o t hat st at ut e. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct . 1836 ( 2004) . Sexual harassm ent is act ionable under Tit le VI I but not under § 1981. 2 Runyon v. McCrary, 427 U.S. 160, 96 S .Ct . 2586 ( 1976) . Tit le VI I and § 1981 proscribe em ploym ent pract ices t hat “ perm eat e t he workplace wit h ‘discrim inat ory int im idat ion, ridicule, and insult t hat is sufficient ly severe or pervasive t o alt er t he condit ions of t he vict im 's em ploym ent and creat e an abusive working environm ent .’ ” Tadem y v. Union Pacific Corp., 520 F.3d 1149, 1156 ( 10t h Cir. 2008) ( int ernal cit at ion and quot at ion om it t ed) . The plaint iff m ust dem onst rat e t hat t he work environm ent was obj ect ively and subj ect ively offensive, but need “ not dem onst rat e psychological harm , nor ... show t hat her work suffered as a result of t he harassm ent .” Walker v. Unit ed Parcel Serv. of Am ., 76 Fed.Appx. 881, 885 ( 10t h Cir. 2003) . The Court exam ines all t he circum st ances in det erm ining if an environm ent is obj ect ively host ile, including “ t he frequency of t he discrim inat ory conduct ; it s severit y; whet her it is physically t hreat ening or hum iliat ing, or a m ere offensive ut t erance; and 2 42 USC § 1981 provides in part : “ All persons wit hin t he j urisdict ion of t he Unit ed St at es shall have t he sam e right in every St at e and Territ ory t o m ake and enforce cont ract s … as is enj oyed by whit e cit izens …” 14 whet her it unreasonably int erferes wit h an em ployee's work perform ance.” Faragher v. Cit y of Boca Rat on, 524 U.S. at 787–88, 118 S.Ct . 2275 ( quot ing Harris v. Forklift Syst em s, I nc., 510 U.S. at 21, 114 S.Ct . 367) ( int ernal cit at ions and quot at ions om it t ed) . “ Conduct t hat is not severe or pervasive enough t o creat e an obj ect ively host ile or abusive work environm ent - an environm ent t hat a reasonable person would find host ile or abusive- is beyond Tit le VI I 's purview.” Harris, 510 U.S. at 21. Sim ilarly, harassm ent t hat is not racial or does not st em from anim us based on a prot ect ed class is not prohibit ed. See Chavez v. New Mexico, 397 F.3d 826, 831–32 ( 10t h Cir. 2005) . Thus Tit le VI I provides no rem edy for boorish behavior or bad t ast e. Duncan v. Manager, Dept . of Safet y, Cit y & Count y of Denver, 397 F.3d 1300, 1313- 14 ( 10t h Cir. 2005) . So incident s spread out over m any years which indicat e m ost ly poor t ast e and lack of professionalism usually do not rise t o t he level of a host ile work environm ent . See, e.g., Penry v. Federal Hom e Loan Bank of Topeka, 155 F.3d 1257, 1263 ( 10t h Cir. 1998) . Plaint iff’s am ended com plaint recit es t he following: 1) a coworker referred t o t he his own genit alia in Sept em ber of 2012; 2) Plaint iff oft en overheard racial slurs on t he radio; 3) a coworker t old him a j oke t hat used racially offensive t erm s; 4) Plaint iff com plained about a coworker’s confederat e flag license plat e but m anagem ent t old Plaint iff he could put a black pant her st icker on his own car and did not ask t he coworker t o rem ove 15 his license plat e; and 5) m anagem ent said Plaint iff was a sick person during t he grievance hearing about t he license plat e. 3 I n det erm ining t he pervasiveness of t he harassm ent , t he court m ay aggregat e evidence of racial host ilit y wit h evidence of sexual host ilit y. Hicks v. Gat es Rubber Co., 833 F.2d 1406, 1416 ( 10t h Cir. 1987) . Furt her, t he Court considers not only specific host ilit y t arget ing Plaint iff, but also t he general work at m osphere. McCowan v. All St ar Maint enance, I nc., 273 F.3d 917, 925 ( 10t h Cir. 2001) . I n light of t he law, t he Court finds t hat alt hough none of t he alleged act s is severe, t he com plaint is sufficient in it s allegat ions of arguably pervasive conduct t o st at e a plausible claim for racial, but not for sexual, harassm ent . Defendant addit ionally cont ends t hat no basis for em ployer liabilit y has been est ablished and t hat it act ed in “ good fait h” in responding t o Plaint iff’s com plaint s about t he license plat e. But t he Court cannot decide an issue of “ good fait h” on t he scant fact s present ed by t he part ies on t his m ot ion. And Plaint iff alleges he com plained t o his supervisor, and Defendant concedes it s knowledge of t he license plat e com plaint , m aking em ployer liabilit y facially plausible. 3 Cont rary t o Plaint iff’s belief, none of t hese st at em ent s const it ut es direct evidence of racial discrim inat ion. “ Direct evidence is evidence which, if believed, resolves a m at t er in issue.” Unit ed St at es v. Cardinas Garcia, 596 F.3d 788, 796- 97 ( 10t h Cir. 2010) . Direct evidence m ust “ show a specific link bet ween t he alleged discrim inat ory anim us and t he challenged decision.” Gross v. FBL Financial Services, I nc., 557 U.S. 167, 129 S.Ct . 2343 ( 2009) . 16 E. Re t a lia t ion Plaint iff alleges in his am ended com plaint t hat he was t erm inat ed because of his previous com plaint s about racial discrim inat ion. Dk. 24, p. 29. His 2013 EEOC charge alleges he was “ discharged in ret aliat ion for [ his] previous com plaint s of discrim inat ion in violat ion of Tit le VI I .” Dk. 24, p. 46. Som e of Plaint iff’s previous com plaint s are included in an EEOC charge Plaint iff filed on April 2, 2011, at t ached t o his am ended com plaint . That charge alleges racial harassm ent , racial discharge, and ret aliat ion for com plaining about racial discrim inat ion. Dk. 24, p. 47. 1 . Tit le V I I Plaint iff’s EEOC charge is wholly conclusory in it s explanat ion of ret aliat ory t erm inat ion, alleging solely t hat Plaint iff was “ discharged in ret aliat ion for [ his] previous com plaint s of discrim inat ion in violat ion of Tit le VI I of t he Civil Right s Act of 1964, as am ended.” No fact s are offered which would m ake such a claim plausible. Accordingly, Plaint iff’s Tit le VI I claim is dism issed for Plaint iff’s failure t o exhaust his adm inist rat ive rem edies. 2. § 1981 Sect ion 1981 encom passes em ploym ent - relat ed ret aliat ion claim s. CBOCS West , I nc. v. Hum phries, 553 U.S. 442, 128 S.Ct . 1951 ( 2008) . Thus ret aliat ion for com plaint s of race discrim inat ion is prohibit ed under § 1981. The t est for est ablishing a prim a facie case for ret aliat ion is t he sam e under Tit le VI I as under 42 U.S.C. § 1981. Argo v. Blue Cross & Blue Shield of 17 Kan., I nc., 452 F.3d 1193, 1202 ( 10t h Cir. 2006) . To est ablish a prim a facie case of ret aliat ion, a plaint iff m ust show t hat : ( 1) he engaged in prot ect ed opposit ion t o discrim inat ion; ( 2) a reasonable em ployee would have found t he challenged act ion m at erially adverse; and ( 3) a causal connect ion exist ed bet ween t he prot ect ed act ivit y and t he m at erially adverse act ion. The Court finds it unnecessary at t his point t o det erm ine what causal st andard applies t o § 1981 ret aliat ion claim s. See generally Universit y of Texas Sout hwest ern Medical Cent er v. Nassar, __ US __, 133 S.Ct . 2517 ( 2013) ( holding Tit le VI I st at us- based discrim inat ion claim s require only t hat one’s prot ect ed st at us be a m ot ivat ing fact or in t he em ployer’s decision, but Tit le VI I ret aliat ion claim s m ust be proved according t o t radit ional principles of but - for causat ion) . Alt hough § 1981 claim s generally apply t he sam e prim a facie t est s as do Tit le VI I , see Drake, 927 F.2d at 1162, t he Nassar m aj orit y in reaching it s causat ion ruling found § 1981’s ret aliat ion provision significant ly different from Tit le VI I ’s ret aliat ion provision. See Nassar, 133 S.Ct . at 2529- 32 ( alluding t o § 1981 as a “ broadly worded” and” undifferent iat ed” ant idiscrim inat ion st at ut e, unlike Tit le VI I ’s det ailed st at ut ory schem e; im plying t hat m ot ivat ing- fact or causat ion m ay rem ain appropriat e for § 1981 ret aliat ion claim s.) Defendant cont ends t hat Plaint iff’s com plaint fails t o allege who t erm inat ed Plaint iff and whet her t hat person knew of plaint iff’s report s of discrim inat ion. I n his response brief, Plaint iff st at es t he following: 18 Plaint iff did dem onst rat e a relat ionship bet ween t he person who Plaint iff com plained against and person who t erm inat ed Plaint iff. Managem ent at t railer shop where Plaint iff works is is one t eam , 3 m anagers. Plaint iff deals have Defendant Francis, Leone, Johnson, and Snell all com plet e t he t eam of m anagem ent at Plaint iffs place of em ploym ent . Plaint iff com plained t o Francis about sexual harassm ent on 09/ 06/ 2012, Plaint iff was t erm inat ed. Plaint iff cam e back t o work on 01/ 21/ 2013, Plaint iff cam e t o Defendant Francis again about Sexual Harassm ent com plaint , On 01/ 21/ 2013 Plaint iff was writ t en up by Defendant Francis for insubordinat ion, t he charge was lat er t hrown out at local hearing. Plaint iff was t erm inat ed by Defendant Francis on 03/ 12/ 2013; Plaint iffs t erm inat ion was ret aliat ion, by Defendant Francis. Dk. 28, p. 11 ( reproduced verbat im ) . Alt hough t he dat es of t he event s are not clear, t his response alleges t hat m anager Francis t erm inat ed Plaint iff in close proxim it y t o and in ret aliat ion for Plaint iff’s com plaint s about sex discrim inat ion ( harassm ent ) . But sex discrim inat ion is not prot ect ed under § 1981, see Runyon,, 427 U.S. 160, and none of t his fact ual det ail is provided in Plaint iff’s Am ended Com plaint . Thus Plaint iff’s com plaint fails t o st at e a plausible claim of ret aliat ion under § 1981 and any am endm ent would be fut ile. V. St a t e La w Cla im s Liberally read, Plaint iff’s am ended com plaint appears t o include st at e law claim s for wrongful t erm inat ion, breach of cont ract , negligent supervision, and int ent ional int erference wit h a cont ract . Defendant cont ends t hat each of t hese claim s is preem pt ed by § 301 of t he Labor Managem ent Relat ions Act , 29 U.S.C. § 185, because det erm ining Plaint iff’s claim s requires int erpret at ion of a Collect ive Bargaining Act . See Garley v. Sandia 19 Corp., 236 F.3d 1200, 1209 ( 10t h Cir. 2001) ( not ing t hat § 301 preem pt s st at e law claim s when t he court m ust int erpret t he CBA) . A. § 3 0 1 LM RA Pr e e m pt ion Sect ion 301 of t he LMRA provides: Suit s for violat ion of cont ract s bet ween an em ployer and a labor organizat ion represent ing em ployees in an indust ry affect ing com m erce as defined in t his chapt er, or bet ween any such labor organizat ions, m ay be brought in any dist rict court of t he Unit ed St at es having j urisdict ion of t he part ies, wit hout respect t o t he am ount in cont roversy or wit hout regard t o t he cit izenship of t he part ies. 29 U.S.C. § 185( a) . This sect ion governs claim s founded direct ly on right s creat ed by collect ive- bargaining agreem ent s, and also claim s “ subst ant ially dependent on analysis of a collect ive bargaining agreem ent .” Elect rical Workers v. Hechler, 481 U.S. 851, 859, 107 S.Ct . 2161, 95 L.Ed.2d 791 ( 1987) ) . Thus a st at e law claim is preem pt ed by federal law “ when resolut ion of [ t hat ] claim is subst ant ially dependent upon analysis of t he t erm s of an agreem ent m ade bet ween t he part ies in a labor cont ract .” Allis– Chalm ers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct . 1904, 85 L.Ed.2d 206 ( 1985) . A claim will also be preem pt ed if it is “ inext ricably int ert wined wit h considerat ion of t he t erm of t he labor cont ract .” Lueck, 471 U.S. at 213. I n ot her words, cont ract int erpret at ion, and t herefore, Sect ion 301 preem pt ion occurs where “ t he right assert ed” is “ derive[ d] from t he cont ract .” ( I d. at 218) . 20 B. W r on gfu l Te r m in a t ion Plaint iff alleges t hat Defendant wrongfully t erm inat ed him by using t he “ cat ch all” except ion t o t he st andard process. Dk. 24, p. 8. Plaint iff cont ends t hat t his except ion applies only t o conduct which is so serious as t o require im m ediat e t erm inat ion t o prot ect Defendant ’s business or em ployees. Because Defendant wait ed from t he 8t h t o t he 12t h t o t erm inat e him , his conduct did not fit t his m old. Exam ining what Plaint iff’s circum st ances were, whet her 17( i) was properly applied t o Plaint iff’s circum st ances, and how 17( i) had been applied t o ot hers in t he past would involve int erpret ing t he CBA. This st at e law claim is t herefore preem pt ed by t he LMRA. C. Br e a ch of Con t r a ct Plaint iff addit ionally alleges t hat Defendant breached it s agreem ent s t o provide a fair, im part ial and unbiased grievance process t o discharged em ployees, t o t erm inat e em ployees only for cause, t o have a union st eward present during invest igat ions, and t o give writ t en not ice t o t he union before discharging an em ployee. Dk. 24, p. 16- 18. The alleged source of each of t hese dut ies is t he CBA. Because t hese st at e- law claim s cannot be resolved wit hout int erpret ing t he agreem ent it self, t hey are preem pt ed by t he LMRA. D . Agr e e m e n t t o Pr ovide a H a r a ssm e n t - fr e e W or k pla ce Plaint iff also alleges t hat Defendant breached it s agreem ent t o provide a harassm ent - free workplace. The source of t hat alleged agreem ent is not 21 t he CBA, but Defendant ’s Professional Conduct and Ant i- Harassm ent Policy, which Plaint iff signed upon of his init ial em ploym ent wit h Defendant . This claim is unrelat ed t o t he CBA so is not preem pt ed by it . Nor is t his claim preem pt ed by Tit le VI I , even if t his claim is based on t he sam e fact s as Plaint iff’s harassm ent claim under Tit le VI I . See Visor v. Sprint / Unit ed Managem ent Co., 965 F.Supp. 31 ( D.Colo. 1997) . Nonet heless, t his claim is precluded by t he alt ernat ive rem edies doct rine. “ The general rule is t hat when t he reasons pled for an em ployee's t erm inat ion violat e federal public policy, no st at e cause of act ion is pled.” Adair v. Beech Aircraft Corp., 1991 WL 97610, 22 n. 8 ( D.Kan. 1991) ; See Morriss v. Colem an Co., I nc., 241 Kan. 501, 512–13 ( 1987) ( cit ing Murphy v. Cit y of Topeka, 6 Kan.App.2d 488 ( 1981) ) . See also Sm it ley v. Cigna Corp., 640 F.Supp. 397, 401 ( D.Kan.1986) . The alt ernat ive rem edies doct rine at issue here, referenced som et im es as preclusion, is a subst it ut ion of law concept . Under t he alt ernat ive rem edies doct rine, a st at e or federal st at ut e would be subst it ut ed for a st at e ret aliat ion claim if t he subst it ut ed st at ut e provides an adequat e alt ernat ive rem edy. Flenker v. Willam et t e I ndust ries, I nc., 266 Kan. 198, 202–03 ( 1998) . Thus where a st at e or federal st at ut e provides an adequat e alt ernat ive rem edy, st at e com m on law claim s based on t he sam e prohibit ed act s are precluded. See Polson v. Davis, 895 F.2d 705, 709 ( 10t h Cir. 1990) ; Conner v. Schnuck Market s, I nc., 121 F.3d 1390, 1399 ( 10t h Cir. 1997) . 22 Plaint iff’s claim t hat Defendant breached it s agreem ent t o provide a harassm ent - free workplace is prem ised on t he sam e underlying fact s t hat form t he basis of his harassm ent claim s under Tit le VI I and § 1981. I n Flenker, t he Kansas Suprem e Court explicit ly referenced Tit le VI I as an adequat e st at ut ory schem e. 967 P.2d at 303. Sim ilarly, t he Tent h Circuit has held t hat t he KAAD “ provides an adequat e and exclusive st at e rem edy for violat ions of t he public policy enunciat ed t herein.” Polson, 895 F.2d at 709– 10. The Court finds t hat Tit le VI I and t he KAAD provide plaint iff an adequat e subst it ut e for t his st at e com m on law rem edy. See Daniels v. Unit ed Parcel Service, I nc., 797 F.Supp.2d 1163, 1196–97 ( D.Kan. 2011) ( finding im plied cont ract claim barred because it was based on t he sam e ret aliat ion alleged under Tit le VI I , t he ADEA, t he KAAD, and t he KADEA, which all provided an adequat e rem edy) . Accordingly, t his st at e- law claim for breach of cont ract is precluded. But even if t he Court were t o reach t he m erit s of t his claim , it would find t he Am ended Com plaint fails t o st at e a claim . Defendant ’s Professional Conduct and Ant i- Harassm ent Policy, which Plaint iff signed upon of his init ial em ploym ent wit h Defendant , does not const it ut e an enforceable cont ract under Kansas law, which t his Court applies t o such claim s. See Get z v. Board of Count y Com 'rs, 194 F.Supp.2d 1154, 1168 ( D.Kan. 2002) ( “ [ u] nder Kansas law, personnel rules which are not bargained for cannot form an express or im plied cont ract of em ploym ent as t hey are m erely a unilat eral 23 expression of ‘com pany policy.’ [ Cit at ion om it t ed.] ” ; Johnson v. Nat ional Beef Packing Co., 220 Kan. 52, 551 P.2d 779 ( 1976) ( no m eet ing of t he m inds is evidenced by t he defendant 's unilat eral act of publishing com pany policy.) This claim m ust t herefore be dism issed. E. N e glige n t Su pe r vision Plaint iff’s am ended com plaint alleges t hat Defendant breached it s dut y t o Plaint iff t o prevent it s em ployees from act ing in any way t o harm him . Specifically, Plaint iff alleges t hat Defendant failed t o adequat ely t rain Manager Carr t o properly conduct an invest igat ion and t o conduct invest igat ions in a non- discrim inat ory m anner. Dk. 24, p. 20. Defendant count ers t hat Kansas does not recognize any cause of act ion for a defendant ’s negligence in supervising a plaint iff’s superior or prevent ing civil right s violat ions. Defendant is correct . I n 1990, t he Tent h Circuit found t hat Kansas would not recognize t he com m on- law t ort of negligent supervision under which an em ployer would be liable for negligent supervision of an em ployee's superior which allegedly allowed t he superior t o violat e em ployee's civil right s. Polson v. Davis, 895 F.2d 705, 710 ( 10t h Cir. 1990) . See Anspach v. Tom kins I ndust ries, I nc., 817 F.Supp. 1499 ( D.Kan. 1993) ; Lawyer v. Eck & Eck Mach. Co., I nc., 197 F.Supp.2d 1267 ( D.Kan. 2002) and cases cit ed t herein. Alt hough Kansas law recognizes t he t heory of negligent supervision in som e circum st ances, t hey are not present here. See e.g., Nero v. Kansas St at e Universit y, 253 Kan. 567 ( 1993) ( sexual assault ) ; 24 C.J.W. v. St at e, 253 Kan. 1, 853 P.2d 4 ( 1993) ( sexual assault ) . The Court is unaware of any change in Kansas law since 1990 t hat would enable Plaint iff t o pursue t his claim as a separat e st at e law cause of act ion. F. I nt e nt iona l I nt e r fe r e nce w it h Cont r a ct Plaint iff addit ionally alleges t hat Wassel and Carr int erfered wit h “ a collect ive bargaining agreem ent for cont inued em ploym ent ” bet ween Defendant and Plaint iff. Wassel is alleged t o have discrim inat ed against Plaint iff in a grievance hearing, and Carr is alleged t o have willfully conduct ed an inadequat e invest igat ion by not having a union st eward present and by not providing writ t en not ificat ion t o t he union, in violat ion of t he t erm s of t he CBA. Dk. 24, p. 20- 22. These claim s require t he Court t o int erpret t he t erm s of t he CBA, so are preem pt ed. G. § 3 0 1 Cla im Having found t hat Sect ion 301 preem pt s Plaint iff's claim s, t he Court det erm ines whet her Plaint iff has st at ed a claim under t hat st at ut e. Federal court review of allegat ions against em ployers for breach of collect ive bargaining agreem ent s is appropriat e only when an em ployee also alleges t hat t he Union represent ing him breached it s dut y of fair represent at ion. See Young v. Unit ed Aut o. Workers- Labor Em ploym ent & Training Corp., 95 F.3d 992, 996 ( 10t h Cir. 1996) . Here, Plaint iff adm it s ( Dk. 28) t hat he is not claim ing t hat his Union breached it s dut y of fair represent at ion, which is an ‘indispensable predicat e’ for t he plaint iff's suit .” Unit ed Parcel Services, I nc. 25 v. Mit chell, 451 U.S. 56, 62, 101 S.Ct . 1559, 67 L.Ed.2d 732 ( 1981) . Even assum ing all allegat ions in t he com plaint t o be t rue, Plaint iff has failed t o st at e a § 301 or hybrid claim upon which relief can be grant ed. VI . Conclusion Am endm ent of any claim s which are not properly exhaust ed, or are unt im ely, or not are cognizable under t he relevant st at ut e or decisional law would be fut ile. All claim s but t he following are dism issed: Plaint iff’s § 1981 claim for racial t erm inat ion; and Plaint iff’s § 1981 and Tit le VI I claim s of racial harassm ent . I T I S THEREFORE ORDERED t hat Defendant ’s m ot ion t o dism iss ( Dk. 26) is grant ed in part and is denied in part in accordance wit h t he t erm s of t his m em orandum . Dat ed t his 24t h day of Oct ober, 2013, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 26

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