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Lu v. Kendall

United States District Court, Tenth Circuit

October 8, 2013

NING LU, Plaintiff,
EVELYN KENDALL, et al., Defendants.



Ning Lu brings suit pro se against Evelyn Kendall, Angela McHardie, Jonathan Thummel, Richard Kline, Brett Fisher, Katherine Rucker, Ron Lawson, James Crowl, Canan Armay, Shelly Buhler (“the Shawnee County defendants”) and Derek Schmidt for alleged violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Plaintiff’s allegations arise out of her employment . This matter is before the Court on two motions to dismiss. The first is Derek Schmidt’s Motion To Dismiss (Doc. #26) filed March 20, 2013. The second, filed by all remaining defendants, is the Motion to Dismiss Of Defendants Evelyn Kendall, Angela McHardie, Jonathan Thummel, Richard Kline, Brett Fisher, Katherine Rucker, Ron Lawson, James Crowl, Canan Armay, And Shelly Buhler (Doc. #30) filed April 8, 2013. Schmidt moves to dismiss plaintiff’s complaint because he was not plaintiff’s employer and the suit seeks damages arising out of plaintiff’s former employment. The Shawnee County defendants move to dismiss plaintiff’s complaint (1) pursuant to Rule 12(b)(1), Fed. R. Civ. P., because this Court lacks subject matter jurisdiction and (2) pursuant to Rule 12(b)(6), Fed. R. Civ. P., because plaintiff has failed to state a claim on which relief may be granted against the Shawnee County defendants. For the following reasons, the Court sustains both motions.

Legal Standards

Defendants seek to dismiss plaintiff’s claims under Rules 12(b)(1) and (b)(6), Fed. R. Civ. P., for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. Rule 12(b)(1) motions generally take the form of facial attacks on the complaint or factual attacks on the accuracy of its allegations. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). Courts may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must “dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Scheideman v. Shawnee County Bd. of County Comm’rs, 895 F.Supp. 279, 280 (D. Kan. 1995) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed.R.Civ.P. 12(h)(3). Because federal courts are courts of limited jurisdiction, the law imposes a presumption against jurisdiction. Marcus v. Kan. Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). Plaintiff bears the burden of showing that jurisdiction is proper, see id., and must demonstrate that the case should not be dismissed, see Jensen v. Johnson County Youth Baseball League, 838 F.Supp. 1437, 1439-40 (D. Kan. 1993). Conclusory allegations of jurisdiction are not enough. Id.

In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court also liberally construes the pleadings of a pro se plaintiff. See Jackson v. Integral, Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). This does not mean, however, that the Court must become an advocate for the pro se plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Liberally construing a pro se plaintiff’s complaint means that “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible – and not merely conceivable – on its face. Iqbal, 556 U.S. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.

The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of framing her complaint with enough factual matter to suggest that she is entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when she pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff must show more than a sheer possibility that defendants have acted unlawfully – it is not enough to plead facts that are “merely consistent with” defendants’ liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged – but has not “shown” – that the pleader is entitled to relief. Id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).

Factual Background

Plaintiff simultaneously filed two complaint documents. The first is entitled “Employment Discrimination Complaint” and the second is entitled “Civil Complaint.”[1] Complaint, Doc. ##1, 1-1 filed February 13, 2013. To these complaints, plaintiff has appended a separate three-page document for seven of the eleven defendants (Doc. ## 1-2, 1-3) and a copy of a notice of right to sue letter that she received in response to her charge of discrimination before the Equal Employment Opportunity Commission (“EEOC”) (Doc. #1-4). Much of the contents of the individual three-page documents are identical. To the extent that plaintiff has included factual allegations in any of these documents, the complaint alleges the following facts:

Plaintiff was employed as a correctional specialist with the Shawnee County Juvenile Detention Center from June 7, 2010 to May 9, 2012, when apparently her employment was terminated. Plaintiff suffered employment discrimination from three incidents which occurred between December of 2011 and May of 2012. These incidents occurred on December 12, 2011, March 3, 2012 and May 1, 2012. Although other employees were involved in these incidents, plaintiff was the only person whose employment was terminated. She asserts that the reason for termination was race, national origin, disability and age.

The incident on December 12, 2011, took place in “John’s class room, ” but plaintiff does not describe it in detail. Plaintiff was the first to respond, running to get there, and she called for assistance. Other officers arrived and applied force to inmates who were fighting. Plaintiff checked on an inmate who was lying on the floor and called a nurse. Plaintiff followed her training in responding to the incident, but she was the only employee to receive a written reprimand from defendant Angela McHardie.

The incident on March 3, 2012, involved inmate Wade and it occurred on Delta Module. On that day, plaintiff did rounds every 15 minutes to check on the juveniles. Plaintiff does not describe what occurred, but states that she followed policies and training when she responded. Plaintiff received five days’ suspension without pay as a result of the incident. Although other officers were also involved, none received that same penalty. Plaintiff complained to the union about her suspension and it was subsequently reduced to three days without pay.

The last incident, which took place on May 1, 2012, involved plaintiff asking defendant Brett Fisher to call 911 because plaintiff had a headache and high blood pressure. McHardie yelled at plaintiff and blocked her exit, forcing her to walk a long way to meet the ambulance in the parking lot. Plaintiff has had weakened circulation on the left side of her body since that time.

Plaintiff also describes an injury she sustained on January 10, 2013, during training at the Juvenile Detention Center. Plaintiff was between two officers when one began pushing her very hard on her right side and injured her. This conduct was not part of the “training list” and it has resulted in plaintiff being restricted from lifting more than 20 pounds on her right side.

As a result of these incidents, plaintiff suffers from depression. She had six emergency room visits in April and May of 2012 and had suicidal ...

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