United States District Court, D. Kansas
KENNETH W. WILLIAMS, Plaintiff,
CORECIVIC, INC. AND CORECIVIC OF TENNESSEE, LLC, Defendants.
MEMORANDUM AND ORDER
A. ROBINSON UNITED STATES DISTRICT JUDGE
Kenneth Williams filed this employment action against his
former employer, alleging retaliation under Title VII and 42
U.S.C. § 1981, age discrimination under the Age
Discrimination in Employment Act (“ADEA”), and
race discrimination under Title VII and 42 U.S.C. §
1981. Before the Court is Defendants' Motion to Dismiss
(Doc. 7). The motion is fully briefed and the Court is
prepared to rule. For the reasons stated below, the Court
grants in part and denies in part the motion.
Court summarizes the facts alleged in the Complaint as
follows and assumes them to be true for purposes of deciding
operate prison facilities throughout the United States.
Plaintiff is an African-American male. He was 56 years old
when Defendants terminated his employment. He has
approximately 27 years of experience working in prisons.
Prior to working for Defendants, he worked for the Texas
Department of Corrections for almost 17 years.
began his employment with Defendants on April 4, 2011, as a
Captain/Supervisor. He transferred from Defendants'
facility in Louisiana to Leavenworth, Kansas in June 2012. He
had an excellent employment record prior to the incidents
that gave rise to this action.
2015, Plaintiff received a Problem-Solving Notice
(“PSN”) for allowing two staff members to work
beyond 16-hours in a 24-hour day. During that same period,
other white Captain/Supervisors had done the same, but they
did not receive any disciplinary action. As a result of this
PSN, Plaintiff received an adverse performance evaluation in
2016, which he grieved on the merits.
received complaints from his staff members regarding safety
and other issues in the facility. On or about September 26,
2016, Plaintiff reported these concerns to Ellis,
Defendants' Managing Director, via email. Ellis responded
to the email and met with Plaintiff. They discussed the
increase in staff and inmate assaults as well as various
implemented a new compliance requirement effective September
2016. Defendants required management employees to complete 40
hours of training during their first year of employment and
24 hours of training each year thereafter. Training could be
completed in facility company sessions or online. Defendants
notified employees of this new policy in October 2016. The
notification advised employees to complete the requisite
hours of training by December 1, 2016.
October 4, 2016, Defendants informed Plaintiff that a
three-day training course, scheduled on December 7 through
December 9, would be offered. Plaintiff signed up to take
October 23, 2016, Plaintiff again emailed Ellis regarding
safety and other concerns. He told Ellis that the situation
had worsened and that he felt that he was being retaliated
against for reporting the issues and filing grievances. Ellis
never responded to Plaintiff.
October 24, 2016, Plaintiff contacted Defendants' Ethics
Office regarding his concerns, including discrimination and
retaliation along with other issues he was experiencing at
the Leavenworth facility.
November 21, 2016, Plaintiff was notified by his chief that
he had been removed from the December training course without
explanation and was advised that he would have to complete
the online training on his own. Plaintiff repeatedly
attempted to complete the training online but was unable to
do so due to his workload.
November 25, 2016, Plaintiff was called into Assistant Warden
Fondren's office to discuss his complaint to the Ethics
Department. Fondren told Plaintiff that “they did not
like how he went about reporting the issues and concerns he
was having regarding the safety issues, discrimination, and
December 1, 2016, Defendants informed Plaintiff that he had
until December 31, 2016, to complete the required training.
Defendants did not tell him that his employment would be in
jeopardy if he failed to do so.
December 5, 2016, Frank Vanoy, one of the inmates involved in
a fight on November 18, requested Plaintiff move him to a
different pod because he was concerned about his safety.
Plaintiff interrogated Vanoy regarding his concerns and
checked the system to see if he had any housing restrictions
placed in his file. When it was determined that he did not,
Plaintiff authorized moving Vanoy to O-Pod.
December 12, 2016, Vanoy was involved in an altercation with
another inmate. Defendants attempted to use Plaintiff as the
scapegoat for this altercation, even though he was not on
shift. They stated that Plaintiff's decision to move
Vanoy was the cause of the altercation.
January 3, 2017, the training and development manager
notified Warden Thomas that Plaintiff had not completed the
required training and he was placed on administrative leave
pending investigation. Plaintiff had completed 5 of the 24
required training hours.
January 19, 2017, Plaintiff again contacted the Ethics Office
and informed them that the retaliation, intimidation, and
harassment against him continued.
February 8, 2017, Plaintiff's employment was terminated.
On February 24, 2017, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission (the “Charge”). Plaintiff alleged the
following in the Charge:
I was hired by Respondent on or about 4/11/11 and I last held
a position as a Shift Supervisor.
I was subjected to unfair terms and conditions of my
employment, including but not limited to unfair evaluation,
harassment, hostile work environment, and discipline.
Because of the unfair treatment, I filed several grievances.
Because of my grievances, I was wrongfully terminated.
I believe this was discrimination against me because of my
race, black, in violation of Title VII of the Civil Rights
Act of 1964, as amended, and retaliation against me for
opposing acts made unlawful under Title VII of the Civil
Rights Act of 1964, as amended.
received a Notice of Right to Sue Letter on March 2, 2017,
and filed this lawsuit on May 30, 2017.
move to dismiss all three counts for failure to state a claim
under Fed.R.Civ.P. 12(b)(6) and/or for failure to exhaust
administrative remedies. To survive a Rule 12(b)(6) 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.'” “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.” “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.'” Although the Court assumes
the complaint's factual allegations are true, it need not
accept mere legal conclusions as true. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” are not enough to state a
claim for relief.
make four arguments for dismissal: 1) Plaintiff has failed to
exhaust administrative remedies for his Title VII and ADEA
claims; 2) Plaintiff has failed to state a claim for
retaliation; 3) Plaintiff has failed to state a claim for age
discrimination under the ADEA; and 4) Plaintiff's
discrimination claim fails because Defendants' alleged
actions were not severe or pervasive, his performance
evaluation was not an adverse employment action, and his
termination was allegedly a result of retaliation, not race
discrimination. The Court addresses each argument in turn.
VII and the ADEA both require exhaustion of administrative
remedies. In the Tenth Circuit, failure to exhaust
administrative remedies is a jurisdictional bar to filing
suit in federal court. Because exhaustion of administrative
remedies is a jurisdictional requirement, the plaintiff bears
the burden of showing exhaustion. The first step to
exhaustion is the filing of a charge of discrimination with
the EEOC. The second step is to determine the
scope of the allegations raised in the EEOC charge because
“[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.” Charges filed with the EEOC are
liberally construed to determine whether administrative
remedies have been exhausted as to a particular
argue the Charge did not include any facts to support the age
and race discrimination claims. They say the Charge did not
even assert a claim based on age discrimination. As for
race-based discrimination, Defendants say Plaintiff asserted
the claim but relied upon an insufficient, conclusory
statement. Plaintiff counters that he has exhausted his
administrative remedies necessary to bring a Title VII and an
ADEA claim. The Court disagrees.
has failed to exhaust his administrative remedies as to his
age discrimination claim for several reasons. First,
Plaintiff only checked the “Race” and
“Retaliation” boxes for the
bases-of-the-discrimination section of the
Charge. He left the “Age” box
unmarked. Second, and more importantly, he provided no
factual details in his written explanation to suggest that he
intended to assert an age discrimination claim. The words
“age” and “old” appear nowhere in the
“Particulars” section of the
Court rejects Plaintiff's argument that Defendants should
have expected that he would assert an age claim after he
retained counsel because he stated his year of birth on the
Charge. Providing standard information such as a date of
birth is not an indication that Plaintiff was asserting
discrimination based on age. Plaintiff's pro se status
affords him a liberal construction of the Charge, but it does
not require the Court to infer age discrimination without a
basis to do so. On the current record, Plaintiff has
failed to exhaust his administrative remedies as to age