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Williams v. Corecivic, Inc.

United States District Court, D. Kansas

January 10, 2018




         Plaintiff 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.

         I. Factual Background

         The Court summarizes the facts alleged in the Complaint as follows and assumes them to be true for purposes of deciding this motion.

         Defendants 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.

         Plaintiff 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.

         In 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.

         Plaintiff 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 security deficiencies.

         Defendants 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.

         On 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 this course.

         On 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.

         On 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.

         On 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.

         On 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 retaliation.”[1]

         On 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.

         On 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.

         On 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.

         On 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.

         On January 19, 2017, Plaintiff again contacted the Ethics Office and informed them that the retaliation, intimidation, and harassment against him continued.

         On 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.[2]

         Plaintiff received a Notice of Right to Sue Letter on March 2, 2017, and filed this lawsuit on May 30, 2017.

         II. Legal Standards

         Defendants 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.'”[3] “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.”[4] “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.'”[5] Although the Court assumes the complaint's factual allegations are true, it need not accept mere legal conclusions as true.[6] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not enough to state a claim for relief.[7]

         III. Analysis

         Defendants 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.

         A. Administrative Exhaustion

         Title VII and the ADEA both require exhaustion of administrative remedies.[8] In the Tenth Circuit, failure to exhaust administrative remedies is a jurisdictional bar to filing suit in federal court.[9] Because exhaustion of administrative remedies is a jurisdictional requirement, the plaintiff bears the burden of showing exhaustion.[10] The first step to exhaustion is the filing of a charge of discrimination with the EEOC.[11] 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.”[12] Charges filed with the EEOC are liberally construed to determine whether administrative remedies have been exhausted as to a particular claim.[13]

         Defendants 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.

         Plaintiff 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.[14] 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 Charge.[15]

         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.[16] 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.[17] On the current record, Plaintiff has failed to exhaust his administrative remedies as to age discrimination ...

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