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Clay v. United Parcel Service, Inc.

United States District Court, Tenth Circuit

October 24, 2013



Sam A. Crow, U.S. District Senior Judge

This employment discrimination case comes before the Court on Defendant’s motion to dismiss Plaintiff’s amended complaint for failure to state a claim and for lack of jurisdiction. Plaintiff, acting pro so, opposes the motion.

I. Motion to Dismiss Standards

“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's ... complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). The court accepts all well-pled factual allegations as true and views these allegations in the light most favorable to the nonmoving party. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 130 S.Ct. 1142 (2010). The court, however, is not under a duty to accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884 (2009). “Thus, mere ‘labels and conclusions' and ‘formulaic recitation of the elements of a cause of action’ will not suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 2012 WL 364058, at *2 (10th Cir. Feb. 6, 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

The Supreme Court recently clarified the requirement of facial plausibility:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Id. [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a Defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a Defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’“ Id. at 557.

Iqbal, 129 S.Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

“[C]ourts should look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 (10th Cir. 2007). “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in [his] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik, 2012 WL 364058, at *3 (citations omitted).

A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).

Matters Outside the Pleading

In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th Cir. 2008). But in considering the complaint in its entirety, the Court also examines documents “incorporated into the complaint by reference, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and documents attached to the complaint, Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012) (quotations and citations omitted). Plaintiff has attached a number of documents to his Amended Complaint, including his original complaint, grievance forms, his EEOC charge and notice of right to sue, and various notes. In deciding this motion, the Court considers all attachments to be part of the complaint. See Rosenfield, 681 F.3d at 1189.

II. Facts

Neither party has set forth a coherent chronology of the crucial events during Plaintiff’s employment which give rise to this case. Accordingly, the court merely offers a summary gleaned from the pleadings. Defendant initially hired Plaintiff in January of 2004 as a utility worker, and Plaintiff stayed in that position throughout his employment. Defendant discharged and reinstated Plaintiff one or more times before finally discharging Plaintiff on March 12, 2013 for the stated reason that he violated Defendant’s Workplace Violence policy. Defendant found that Plaintiff had a verbal altercation and threated a coworker in the employee parking lot on March 8, 2013, so discharged Plaintiff pursuant to Article 17(i) of Defendant’s Supplemental Agreement with the Central Region of Teamsters. That article generally prohibits Defendant from discharging an employee without first issuing a warning letter and providing a hearing, subject to certain enumerated exceptions and to subsection (i) - a catch-all exception for “other serious offenses.” The Court takes judicial notice[1] of the facts included in the following interpretation of 17(i) by Shawnee County Judge Hendricks, who examined it when Plaintiff sought unemployment benefits after Defendant discharged him in September of 2012 pursuant to that subsection.

Article 17 of the Supplemental Agreement is designed to ensure that employees are not discharged before receiving “a warning letter of a complaint.” Article 17 also sets out several exceptions to this general provision, which include specific conduct that is so severe and offensive that an immediate discharge is appropriate. Some of these exceptions include taking money from the company, consuming alcohol or narcotics during the workday, and gross negligence resulting in a serious accident. Therefore, the catch-all exception listed in subsection (i) of Article 17, “other serious offenses, ” which is cited to as the reason for Mr. Clay’s discharge, refers to other conduct so severe that to merely issue a warning would not be sufficient to ensure the safety of the company’s employees and business operations.

Clay v. Kansas Employment Sec. Bd. of Review, Dk. 28, p. 17.

Plaintiff filed an EEOC charge the day after his March 12, 2013 termination, complaining of race discrimination, sex discrimination, and retaliation, and the EEOC swiftly noticed Plaintiff of his right to sue. Plaintiff timely filed this lawsuit. His amended complaint seeks damages and an injunction for Defendant’s alleged violation of Title VII, 42 USC § 1981, and Kansas state law. Plaintiff alleges Defendant discriminated against him based on his race (African American) and sex and retaliated against him by terminating his employment because of his complaints about discrimination.

III. Exhaustion of Administrative Remedies

“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (internal quotation marks omitted). The Plaintiff bears the burden to establish the court's subject-matter jurisdiction. See Southway v. Cent. Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003). “A plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007), quoting MacKenzie v. City and County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). Thus, to exhaust administrative remedies, “the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim[, because] each discrete incident of alleged discrimination or retaliation constitutes its own unlawful employment practice for which administrative remedies must be exhausted.” Manning v. BlueCross and BlueShield of Kansas City, 522 Fed.Appx. 438 (10th Cir. 2013), quoting Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (internal quotation marks omitted). The Court liberally construes charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim. Jones, 502 F.3d at 1186.

The Court has an independent duty to examine whether it has subject matter jurisdiction, and such jurisdiction is lacking when a Title VII plaintiff has not exhausted administrative remedies. Manning, 522 Fed.Appx. at 441. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (holding that exhaustion of administrative remedies is a jurisdictional prerequisite to suit under the ADEA and Title VII).

EEOC Charge

Plaintiff’s EEOC charge alleges retaliation, and discrimination based on race and sex. Its narrative section states only the following:

I was employed January 12, 2004, through March 12, 2013, working as a Utility Worker.
Since my return to work on January 21, 2013, I have been subjected to racial discrimination based on comments made to me or that I have heard. I also made complaints against my supervisor for a writes (sic) he issued to me for insubordination.
I was sexually harassed in September of 2012, by a coworker when I was pulling a trailer into the bay. He made a comment about his “Dick” being long and I reported it to Management. Management took no action based on my complaint.
On March 12, 2013, I was discharged for a violation of the Code of Conduct “Workplace Violence.” I was subjected to sexual harassment, racial comments and discharged in retaliation for my previous complaints of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended.
Amended Complaint, Dk. 24, p.46. This latter sentence is wholly conclusory and adds no factual basis to the charge.

IV. Federal Claims

Plaintiff brings various federal claims under Title VII and 42 USC § 1981.

A. Racial Termination

1. Title VII

The sole allegation in Plaintiff’s EEOC charge relevant to termination is that on a specific date, Plaintiff “was discharged for a violation of the Code of Conduct “Workplace Violence.” Even if one liberally construes this language to refer to the given reason for Plaintiff’s discharge instead of to the agreed reason for it, no facts included in Plaintiff’s EEOC charge would reasonably lead the EEOC to investigate a claim ...

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