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Garcia v. University of Kansas Hospital

United States District Court, Tenth Circuit

August 21, 2013

MELINDA GARCIA, Plaintiff,
v.
THE UNIVERSITY OF KANSAS HOSPITAL, or alternatively, THE UNIVERSITY OF KANSAS HOSPITAL AUTHORITY et al., Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

Melinda Garcia brings numerous employment discrimination claims against the University of Kansas Hospital, or alternatively, the University of Kansas Hospital Authority ("UKHA"), and her direct supervisor Jamie Stockwell. Second Amended Complaint (Doc. #12) filed January 16, 2013. Plaintiff alleges 13 employment discrimination claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ("PDA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") and 42 U.S.C. § 1981. This matter comes before the Court on Defendant University Of Kansas Hospital Authority's Motion To Dismiss Counts VI, VII, VIII, And IX Of Plaintiff's Second Amended Complaint Or In The Alternative to Stay This Matter Until Plaintiff Has Exhausted Administrative Remedies (Doc. #19) filed February 22, 2013, Defendant University Of Kansas Hospital Authority's Motion To Strike Plaintiff's Sur-Reply In Further Opposition To Defendant's Motion To Dismiss Counts VI, VII, VIII, And IX Of Plaintiff's Second Amended Complaint Or In The Alternative To Stay This Matter Until Plaintiff Has Exhausted Administrative Remedies (Doc. #26) filed March 29, 2013, Plaintiff Melinda Garcia's Motion For Leave To File Sur-Reply In Further Opposition To Defendant University Of Kansas Hospital Authority's Motion To Dismiss Counts VI, VII, VIII, And IX Of Plaintiff's Second Amended Complaint Or In The Alternative To Stay This Matter Until Plaintiff Has Exhausted Administrative Remedies (Doc. #28) filed April 2, 2013 and Defendant University Of Kansas Hospital Authority's Motion To Dismiss Claims Of Racial Discrimination And Retaliation Contained In Counts V And VIII Of Plaintiff's Second Amended Complaint (Doc. #34) filed April 19, 2013.

Defendant seeks to dismiss portions of plaintiff's claims for retaliation under the ADA (Count VI), Title VII (Counts VII and VIII) and the PDA (Count IX), and portions of plaintiff's claims for race and national origin discrimination under Title VII (Counts V and VIII). For reasons stated below, the Court sustains in part defendant's first motion to dismiss (Doc. #19), sustains in part defendant's motion to strike (Doc. #26), overrules plaintiff's motion for leave to file sur-reply (Doc. #28) and overrules defendant's second motion to dismiss (Doc. #34).

Factual And Procedural History

On September 27, 2012, plaintiff filed a discrimination charge against the University of Kansas Hospital with the Kansas Human Rights Commission ("KHRC") and the Equal Employment Opportunity Commission ("EEOC"). Doc. #20-1.[1] On the charge form, plaintiff marked the boxes for "sex, " "national origin" and "disability" discrimination. Id . Plaintiff stated that the discrimination took place from November 17, 2011 to March 12, 2012, and marked the box labeled "continuing action." Id . In the narrative section, plaintiff stated as follows:

I was hired on September 8, 2008 as a Customer Service Representative. In late November 2011, I informed my supervisor of my medical condition, my pregnancy and need for an accommodation. On or about November 21, 2011, I received a write up for attendance. From that point, my supervisor would stand near my desk and monitor me, and he would follow me to the restroom. My supervisor would also counsel me about my tattoos and not parking in handicap spots I was entitled to park in. My supervisor made me take Spanish calls, which was not in my job description. On or about March 13, 2012, my supervisor made a series of comments to me that sent me out on medical leave.
I believe I have been disciplined and denied equal terms and conditions because of my national origin (Hispanic), my sex (female), and my pregnancy in violation of Title VII of the Civil Rights Act of 1964, as amended. I believe I have been disciplined, denied equal terms and conditions and denied reasonable accommodation because of my disability in violation of the Americans with Disabilities Act Amendments Act of 2008.

Id. On October 18, 2012, the EEOC mailed plaintiff a Dismissal and Notice of Rights in response to this charge, giving plaintiff the right to sue for the alleged violations.

On October 5, 2012, plaintiff filed a second discrimination charge against the University of Kansas Hospital. Doc. #20-2. On this form, plaintiff marked the "retaliation" box. Id . Plaintiff stated that the discrimination took place on October 2, 2012. Id . In the narrative section of the administrative charge form, plaintiff stated as follows:

I was hired on or about September 8, 2008 as a Customer Service Representative. On or about September 12, 2012, I filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging unfair treatment based on my national origin, sex, pregnancy and disability. (Charge No. 563-2012-01763) On or about October 2, 2012, I learned I had been discharged from my position on September 30, 2012.
Human Resources informed me that I had been discharged because The Hartford had not approved my long term disability request. The Hartford informed me that my long term disability request had been granted.
I believe I was discharged in retaliation for filing a charge of discrimination with the EEOC in violation of Title VII of the Civil Rights Act of 1964, as amended, and in violation of the Americans with Disabilities Act Amendments Act of 2008.

Id. On March 18, 2013, the EEOC mailed plaintiff a Notice of Right to Sue in response to this charge, giving plaintiff the right to sue defendant for the alleged violations.

As noted above, plaintiff sued defendants alleging numerous counts of discrimination and retaliation. On February 22, 2013, defendant filed a motion to dismiss plaintiff's retaliation claims in Counts VI through IX for failure to exhaust administrative remedies. Counts VI through IX allege retaliation in violation of the ADA (Count VI), Title VII (Counts VII and VIII) and the PDA (Count IX). Specifically, these counts allege retaliation in response to the following protected activities: (1) requesting reasonable accommodation of additional breaks to use the restroom and take medication (Counts VI, VII and IX), (2) requesting medical leave (Count VI), (3) complaining internally to human resources and a temporary supervisor (Counts VI through IX), and (4) filing a Charge of Discrimination with the EEOC and KHRC (Counts VI through ...


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