United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum United States District Judge.
filed this lawsuit against her former employer alleging that
defendant failed to promote plaintiff and then terminated her
employment on the basis of her race in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. In addition, plaintiff asserts claims under 42 U.S.C.
§ 1983 for deprivation of a liberty interest without due
process of law and malicious prosecution. This matter is
presently before the court on defendant's motion to
dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) (doc. 7). As will be explained,
the motion is granted in part and denied in part.
court will grant a motion to dismiss for failure to state a
claim when a plaintiff's factual allegations fail to
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). The complaint need not contain detailed
factual allegations, but a plaintiff's obligation to
provide the grounds of entitlement to relief requires more
than labels and conclusions; a formulaic recitation of the
elements of a cause of action will not do. See id.
at 555. The court must accept the facts alleged in the
complaint as true, even if doubtful in fact, see
id., and view all reasonable inferences from those facts
in favor of the plaintiff, see Tal v. Hogan, 453
F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555.
with the applicable standard, the court accepts as true the
following well-pleaded facts alleged in plaintiff's
complaint. See Sanders v. Mountain Am. Federal Credit
Union, 689 F.3d 1138, 1141 (10th Cir. 2012). Plaintiff
is an African-American female who began her employment with
defendant in February 2008 as a customer service
representative in the “3-1-1” department. In
January 2013, plaintiff moved to the Delinquent Real Estate
Department where she worked as an administrative support
specialist. In that capacity, plaintiff supported the tax
sale process through the Wyandotte County District Court.
Plaintiff took on additional duties in September 2014 when
the department's business coordinator resigned her
employment. In March 2015, plaintiff started receiving
out-of-grade pay to compensate for those new duties.
According to the complaint, the first fifteen years of
plaintiff's employment passed without incident. Despite
her expression of interest in formally applying for the
business coordinator position, defendant refused to post the
position and plaintiff continued to perform the duties
associated with the position until mid-October 2015.
October 16, 2015, plaintiff was summoned into a meeting by a
member of management, who was accompanied by a police officer
employed by the Unified Government. The officer questioned
plaintiff about computer crimes relating to a tax sale that
she allegedly committed in the course of her employment.
Plaintiff denied any wrongdoing and, without warning, was
taken into custody by the officer and escorted to the police
department. According to plaintiff, a management-level
employee in the Delinquent Real Estate Department provided
false information to the police which caused plaintiff's
arrest. Plaintiff was charged with four counts of criminal
October 21, 2015, defendant suspended plaintiff's
employment without pay pending the resolution of the charges
against her. A Wyandotte County District Judge dismissed the
charges against plaintiff in May 2015 on the motion of
plaintiff's counsel. Despite the fact that the charges
were dismissed, defendant never reinstated plaintiff to her
position. In June 2016, plaintiff received a letter from
defendant's director of operations advising plaintiff
that defendant was terminating her employment effective
October 16, 2015. Thereafter, plaintiff submitted information
to defendant refuting the charges against her and requesting
a grievance hearing. On July 11, 2016, defendant notified
plaintiff that a grievance hearing would be held on July 13,
2016. Plaintiff's counsel was denied the opportunity to
attend the hearing with plaintiff. After the hearing,
defendant decided to uphold the termination decision.
filed a charge of discrimination with the EEOC and, after
receiving her notice of right to sue, filed her complaint
moves to dismiss plaintiff's failure-to-promote claim on
the grounds that plaintiff failed to include that claim in
her charge of discrimination. Plaintiff concedes in her
response that her charge does not include a
failure-to-promote claim and that the claim must be
dismissed. This aspect of defendant's motion, then, is
granted. See Apsley v. Boeing Co., 691 F.3d 1184,
1210 (10th Cir. 2012) (exhaustion of administrative remedies
is a prerequisite to suit and administrative remedies
generally must be exhausted as to each discrete instance of
discrimination or retaliation).
complaint, plaintiff alleges that her employment was
terminated based on her race in violation of Title VII.
Defendant moves to dismiss this claim on the grounds that
plaintiff has failed to allege any facts plausibly suggesting
that similarly situated employees outside of her protected
class were treated more favorably. This argument borders on
frivolous and is denied. Plaintiff clearly alleges that
defendant treated Caucasian employees who engaged in similar
or more egregious conduct more favorably than it treated
plaintiff. No more is required at this stage. See
Townsend-Johnson v. Cleveland, 494 Fed.Appx. 833, 837
(10th Cir. June 25, 2012) (the plaintiff stated plausible
claim for relief for race discrimination under § 1981
where she alleged that she is an African-American, that the
defendant terminated her employment and that employees
outside the protected class were not terminated for similar
conduct); Khalik v. United Air Lines, 671 F.3d 1188,
1192-93 (10th Cir. 2012) (plaintiff need not set forth prima
facie case for each element but must plead enough facts to
satisfy plausibility requirement). Moreover, because a
plaintiff is not required to show differential treatment of
persons outside the protected class to satisfy the initial
prima facie burden under McDonnell Douglas, it
defies logic to suggest that a plaintiff's complaint
might be subject to dismissal for failing to allege
adequately that similarly situated employees outside the
protected class were treated more favorably. See Sorbo v.
United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir.
2005) (comparison to similarly situated employees is not
required as part of a plaintiff's prima facie case; the
relevant prima facie element may be framed more broadly,
requiring only a “showing of circumstances giving rise
to an inference of discrimination”); English v.
Colo. Dept. of Corrs., 248 F.3d 1002, 1008 (10th Cir.
2001) (In disciplinary discharge cases, a “plaintiff
does not have to show differential treatment of persons
outside the protected class to meet the initial prima facie
burden under McDonnell Douglas.”).
Defendant's motion to dismiss plaintiff's
discriminatory discharge claim is denied.