United States District Court, D. Kansas
JACOB A. CRUMPLEY, Plaintiff,
ASSOCIATED WHOLESALE GROCERS, INC., and CLARENCE M. KELLEY AND ASSOCIATES, INC., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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
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.
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.
AWG's Motion to Dismiss
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).
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. 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
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.
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.
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.
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.
Rule 12(b)(6) Motion to Dismiss Standard
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)).
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.
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.
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.
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). 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)).
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
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
Factor One: Right to Terminate Employment
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.
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,  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.
Factor Two: Work Rules and Assignments
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 ...