United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Kelli Coffman was employed with defendant State of Kansas
(the “State”) as a corrections officer at the
Topeka Correctional Facility (“TCF”). The State
terminated plaintiff's employment on April 5, 2016.
Plaintiff filed this employment action alleging that
defendants discriminated and retaliated against her in
violation of Title VII, the Americans with Disabilities Act
(“ADA”), the Kansas Act Against Discrimination
(“KAAD”), and the Rehabilitation Act. The matter
is now before the court on the State's motion to dismiss
under Federal Rule of Civil Procedure 12(b)(1). (Dkt. 17).
The State claims that it is immune from suit under the
Eleventh Amendment. It also asserts that plaintiff failed to
exhaust her administrative remedies. For the reasons stated
below, the State's motion to dismiss is granted in part
and denied in part.
March 2016, plaintiff was a correctional officer at TCF.
Plaintiff alleges that on or about March 5, 2016, she went
out with a male coworker after work that resulted in an
incident of nonconsensual sexual contact. A couple of days
later, plaintiff reported to her supervisor, Major Tammy
Shoulders, that she was a victim of this sexual assault.
Plaintiff requested time off in accordance with Kansas law,
Kan. Stat. Ann. §§ 44-1131, 1132, which provides
and requires protected time off work for victims of sexual
abuse. Plaintiff states that when pressed, she told Shoulders
that the assault was committed by a coworker. But plaintiff
told Shoulders that she wanted to keep the information
asserts that she began having recurring depression. On March
15, 2016, she discovered that her employer was going to
interview the coworker. Plaintiff immediately panicked and
visibly suffered from anxiety. Shoulders had plaintiff taken
to Valeo Behavioral Health to speak with a counselor.
March 22, 2016, plaintiff began crying at work as a result of
her depression from the assault. One of plaintiff's
supervisors saw plaintiff crying and took her to a conference
with Shoulders and several other managerial employees.
According to plaintiff, the managers informed her that she
had to get help or quit her job. Plaintiff responded that she
would not quit. Shoulders then had another TCF employee
transport plaintiff to Valeo Behavioral Health, where
plaintiff was admitted for treatment and remained for several
returned to work on March 29, 2016, and had no further
problems. However, defendants terminated plaintiff's
employment on April 5, 2016.
about August 4, 2016, plaintiff filed a complaint with the
Equal Employment Opportunity Commission (“EEOC”)
alleging gender discrimination, disability discrimination,
and retaliation. Plaintiff dually filed her EEOC complaint
with the Kansas Human Rights Commission (“KHRC”)
within 180 days of the alleged acts. On April 5, 2017, the
EEOC issued plaintiff a Notice of Right to Sue Letter.
Exhaustion Requirement of the KAAD Claim
KAAD prohibits disability and gender discrimination against
an employee. Kan. Stat. Ann. § 44-1001. A KAAD plaintiff
must timely exhaust administrative remedies. Kan. Stat. Ann.
§ 44-1005(i). The State claims that plaintiff failed to
exhaust her administrative remedy with respect to her KAAD
claim because she did not state whether the KHRC ever issued
a determination, dismissal, right to sue letter, or other
a plaintiff may litigate any KAAD claims in court, [the]
plaintiff must first receive an unfavorable determination
from the KHRC, file for reconsideration of that unfavorable
determination and then receive a denial of the
reconsideration application.” Davidson v. MAC
Equip., Inc., 878 F.Supp. 186, 189 (D. Kan. 1995)
(citing Simmons v. Vliets Farmers Coop. Ass'n,
861 P.2d 1345, review denied, 845 P.2d 1223 (1993)).
The denial of the reconsideration application is a
prerequisite to invoking the court's subject matter
jurisdiction under this Act. See Weber v. Bd. of Cty.
Comm'rs of Chase Cty., Kan., No. 14-1263-JAR-KMH,
2014 WL 5848971, at *1 (D. Kan. Nov. 12, 2014)
(“Failure to exhaust administrative remedies is a
jurisdictional bar to filing suit in federal court.”)
reviewing a factual attack on subject matter jurisdiction, a
district court . . . has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).”
Holt v. United States, 46 F.3d 1000, 1002-03 (10th
Cir. 1995) (internal citations omitted). Consideration of
such outside evidence does not convert the motion to one for
summary judgment. Id.
filed her amended complaint on September 6, 2017. The next
day, the KHRC dismissed the administrative complaint, and
plaintiff subsequently sought reconsideration of its
dismissal. (Dkt. 25-1). Plaintiff does not state that the
KHRC ruled on her petition for reconsideration. However, a
petition for reconsideration is deemed to be denied if the
KHRC takes no action within 20 days of plaintiff filing her
petition for reconsideration. (Id. at 3). It is
unclear whether the KHRC took no action on plaintiff's
petition or if plaintiff failed to plead sufficient facts
that she exhausted her administrative remedies-a
jurisdictional requirement. But as addressed below,
plaintiff's KAAD claim is barred by the Eleventh
Amendment. See infra.
Plaintiff's Title ...