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Crumpley v. Associated Wholesale Grocers Inc.

United States District Court, D. Kansas

April 13, 2017

JACOB A. CRUMPLEY, Plaintiff,
v.
ASSOCIATED WHOLESALE GROCERS, INC., and CLARENCE M. KELLEY AND ASSOCIATES, INC., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Broadly, this case is about whether defendants Clarence M. Kelley and Associates, Inc. (“Kelley”) and Associated Wholesale Grocers, Inc. (“AWG”) fired plaintiff because he has a seizure disorder-which plaintiff contends would violate the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. But, more immediately, this case has become a dispute over the question whether AWG was plaintiff's joint employer. AWG says it wasn't. Plaintiff says it was. If AWG is correct, then it cannot be liable under the ADA and can exit this litigation now. If plaintiff is correct, AWG stays in the case.

         Trying to resolve this immediate dispute, AWG filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. Doc. 59. Plaintiff responded to the substance of AWG's Motion, but also filed a Motion for Extension of Time to Defer Ruling on Motion for Summary Judgment or, in the Alternative, for Leave to File Surreply. Doc. 69. In its Motion, AWG asks the court to dismiss the claims against it under either Federal Rule of Civil Procedure 12(b)(6) or 56. Rules 12(b)(6) and 56 require the court to use drastically different legal standards, so such hybrid motions are disfavored. Nonetheless, the court considers AWG's motion here.

         Because plaintiff has filed a Rule 56(d) motion and the requisite affidavit, the court excludes, at first, matters outside the pleadings. By excluding these matters in the first phase of its analysis, the court can consider AWG's hybrid motion as one that really presents two separate motions: a motion to dismiss and a motion for summary judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). Thus, the court first considers AWG's motion to dismiss under Rule 12(b)(6). As explained below, the court denies that motion. The court then turns to plaintiff's motion under Rule 56(d) to defer ruling on the summary judgment aspect of AWG's motion. Because the court concludes that is should grant plaintiff's Rule 56(d) motion, it denies AWG's motion for summary judgment.

         I. AWG's Motion to Dismiss

         A. Background

         Because AWG brings its motion to dismiss under Rule 12(b)(6), the court takes the following facts from plaintiff's First Amended Complaint and accepts them as true. See S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014).

         Plaintiff Jacob Crumpley began working for Kelley in March 2014 after responding to a Craigslist ad. Doc. 50 ¶¶ 13-14. This ad announced that Kelley was “hiring EMT/Security Guards (unarmed) to work at a Kansas City, KS business.” Doc. 50-1 at 1.[1] That business was AWG. As soon as Kelley hired plaintiff, he began working for AWG in that role. Id. at 2; see also Doc. 50 ¶¶ 12-13.

         Plaintiff worked for AWG until August 21, 2014-about two months after plaintiff suffered a seizure at work. Doc. 50 ¶¶ 12, 55. On August 21, 2014, plaintiff's supervisor at Kelley, Jeff Harper, informed plaintiff that AWG no longer needed him. Id. ¶¶ 12, 87, 90. No one at AWG spoke with plaintiff about why he was fired. And, from his First Amended Complaint, it appears that plaintiff did not speak with anyone at AWG on or after August 21, 2014.

         After he was fired, plaintiff asked Mr. Harper whether his seizure condition led to his dismissal from AWG. Mr. Harper told plaintiff that he was dismissed from AWG because AWG “had requested ‘changes' and that [p]laintiff's job position was no longer needed.” Id. ¶ 90. Before plaintiff had spoken with Mr. Harper, however, he had found the “exact same posting” advertising the AWG job on Craigslist that he had responded to back in March 2014. Id. ¶ 92.

         Kelley never placed plaintiff in another position. On September 11, 2014, Kelley terminated plaintiff, telling him to “return his uniform and pick up his final paycheck.” Id. ¶ 99. Plaintiff filed complaints with the Kansas Human Rights Commission on October 17, 2014. Docs. 50-1, 50-2. They alleged that AWG and Kelley had violated the ADA by firing him because of his seizure condition. See Docs. 50-1, 50-2. On March 3, 2016, the Kansas Human Rights Commission issued a Notice of Right to Sue and plaintiff filed his original Complaint with our court seven days later, asserting two claims under the ADA: unlawful termination and retaliation. Doc. 50-3; Doc. 50-4; Doc. 1 at 1.

         Then, on July 11, 2016, AWG filed a motion to dismiss plaintiff's Complaint under Rule 12(b)(6). In that motion, AWG argued that plaintiff had not alleged facts sufficient to hold AWG liable as his joint employer. The court agreed and granted its motion on November 8, 2016. Doc. 48. But the court also granted plaintiff leave to file an amended complaint. Id. Plaintiff seized this opportunity and filed his First Amended Complaint on November 21, 2016. Doc. 50. Plaintiff's First Amended Complaint asserts the same two claims against AWG and Kelley, but adds many new factual allegations. Less than a month after plaintiff filed this Amended Complaint, AWG filed the Motion to Dismiss or, in the Alternative for Summary Judgment at issue here. Doc. 59.

         B. Rule 12(b)(6) Motion to Dismiss Standard

         Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. 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. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'” Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

         On a motion to dismiss like this one, the court assumes that a complaint's factual allegations are true, but need not accept mere legal conclusions as true. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not enough to state a claim for relief. Id.

         C. Analysis

         AWG asks the court to dismiss plaintiff's claims under Rule 12(b)(6) for failing to state a claim. Specifically, AWG contends that plaintiff has failed to allege sufficient facts that, if accepted as true, support his claim that AWG was his employer, as the ADA defines and uses that term.

         To state a claim under the ADA, plaintiff must allege that AWG was his employer. See Bristol v. Bd. of Cty. Comm'rs of Cty. of Clear Creek, 312 F.3d 1213, 1217, 1221 (10th Cir. 2002).[2] The Tenth Circuit uses three different tests to determine whether a defendant is an employer under the ADA: (1) the hybrid test; (2) the joint-employer test; and (3) the single-employer test. Id. at 1217-18; Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1225-26 (10th Cir. 2014). Here, plaintiff's First Amended Complaint never asserts that AWG was his sole employer. Instead, it alleges that both AWG and Kelley qualified as his employers. So, only the joint-employer test is germane to this case. See Knitter, 758 F.3d at 1226 (“[T]he joint employer test, not the hybrid test, is the appropriate test to use when an employee of one entity seeks to hold another entity liable as an employer.” (citing Bristol, 312 F.3d at 1218)).

         Under the joint-employer test, “a plaintiff who is the employee of one entity may seek to hold another entity liable by claiming that the two entities are joint employers.” Bristol, 312 F.3d at 1218. This test “acknowledges that the two entities are separate, but looks to whether they co-determine the essential terms and conditions of employment.” Id. To hold two entities liable as joint employers, each one must “exercise significant control” over the terms and conditions of a worker's employment. Knitter, 758 F.3d at 1226 (citation omitted). To decide whether a defendant exercises significant control over a worker's employment, the court considers several factors: (1) the right to terminate employment, (2) the ability to “promulgate work rules and assignments, ” (3) “day-to-day supervision of employees, including employee discipline, ” (4) control over compensation, benefits, and hours, and (5) “control of employee records, including payroll, insurance, taxes and the like.” Id. (quoting Butterbaugh v. Chertoff, 479 F.Supp.2d 485, 491 (W.D. Pa. 2007)). The most important factor, however, is the right to terminate employment. Id.

         Here, AWG contends that plaintiff has not alleged facts sufficient to support a plausible claim that AWG was his joint employer under these factors. The court considers each factor below, bearing in mind that the standard plaintiff must satisfy to survive AWG's motion to dismiss is low and requires no actual proof. Instead, the governing standard just requires plausible allegations.

         1. Factor One: Right to Terminate Employment

         In his First Amended Complaint, plaintiff alleges that AWG had “the power to terminate” him in one of two ways: “by ‘refusing' to allow him to work for AWG, or by simply requesting Defendant Kelley terminate him.” Doc. 50 ¶ 51. AWG contends that this allegation is not sufficient for two reasons: (1) because “AWG's right to request that [p]laintiff no longer work on its premises” is, legally, not the same as the right to terminate plaintiff's employment with Kelley; and (2) because plaintiff's allegation that AWG could ask Kelley to terminate him, “implicitly acknowledges that while AWG had the ability to request that Kelley no longer assign Plaintiff to work at its facility, only Kelley could terminate his employment.” Doc. 60 at 17.

         Although the court agrees with AWG that having the right to request plaintiff no longer be assigned to AWG is not the same as having the right to fire plaintiff, [3] the court is not persuaded by AWG's second argument. Plaintiff has alleged that AWG could terminate his employment by “requesting Defendant Kelley terminate him.” Doc. 50 ¶ 51. This allegation is not a legal conclusion, so the court must accept it as true. This allegation thus provides a plausible basis for the court to infer that AWG had the right to terminate plaintiff's employment. And, at the motion to dismiss stage, nothing more is required. This first, and most important factor, thus counsels against dismissal.

         2. Factor Two: Work Rules and Assignments

         Plaintiff also alleges that AWG “gave [p]laintiff work assignments and dictated rules governing his work.” Id. ¶ 21. AWG contends that this allegation is not sufficient because it is “conclusory” and does not support an inference “that AWG promulgated work rules or issued assignments beyond those ...


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