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Lister v. Western Industries Corp.

United States District Court, D. Kansas

May 18, 2018

JAMES LEE LISTER, Plaintiff,
v.
WESTERN INDUSTRIES CORPORATION, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This case arises out of Defendant Western Industries Corp.'s termination of Plaintiff James Lister's employment after a safety incident involving a saw that could have, but did not, result in serious physical injuries to another employee. Plaintiff asserts that Defendant terminated his employment while at the same time retaining the other employees also involved in the incident, and alleges that Defendant terminated him because of his race-African American. He pursues claims for unlawful discrimination as well as “employer negligence” arising from Defendant's violations of the Occupational Safety and Health Act of 1970 (“OSHA”) and its denial of workers compensation benefits. Defendant filed a Motion to Dismiss (Doc. 18), arguing that Plaintiff's race discrimination claim is barred by his failure to adequately plead exhaustion of administrative remedies and failure to timely file this action, that OSHA does not authorize a private right of action, and that Plaintiff's exclusive remedy for the alleged denial of workers' compensation benefits arises under the Kansas Workers' Compensation Act (“KWCA”). For the reasons explained below, the Court denies in part and grants in part Defendant's motion.

         I. Factual and Procedural Background

         According to Plaintiff's First Amended Complaint, in 2015, a temporary placement service assigned Plaintiff to work for Defendant as a “temp, ” with the potential for permanent hire after 90 days. Plaintiff began work for Defendant on November 25, 2015. On January 19, 2016, Plaintiff and three other workers were involved in a workplace safety incident involving a saw. After a machine operating a saw blade shut down, the lead/saw operator and another employee began changing the saw blade, while Plaintiff and another employee stacked wood onto pallets in the area at the back of the machine. The lead/saw operator asked Plaintiff if they were “clear in the back, ” and Plaintiff responded affirmatively. The lead/saw operator then started the saw with an employee still in the machine. The saw cut the boot of the employee inside the machine, but the employee did not sustain any physical injuries. The lead/saw operator blamed Plaintiff for the close call, and Plaintiff asserts that it was not his responsibility to look inside the machine and ensure that the employee inside had left. Rather, Plaintiff alleges that this responsibility belonged to the lead/saw operator.

         Plaintiff alleges that the manager originally fired two employees-Plaintiff and the lead/saw operator-but that when the lead/saw operator pleaded for his job, the manager agreed to only fire Plaintiff. Plaintiff alleges that Defendant discriminated against him on the basis of his race when it fired only him, the sole African American involved in the incident, while at the same time retaining the three white employees also involved in the incident.

         Plaintiff alleges that he subsequently reported the incident to the Occupational Safety and Health Administration, which found Defendant at fault for not having proper lock out/tag out procedures in place and cited Defendant for not providing employees with dust masks. Plaintiff's First Amended Complaint implies that he either filed or attempted to file a workers' compensation claim relating to saw dust, and that Defendant precluded him from pursuing workers' compensation benefits. Plaintiff does not identify when he sought workers' compensation benefits; nor does he identify the alleged injury entitling him to such benefits.

         Proceeding pro se, Plaintiff filed this lawsuit on August 15, 2017. He filed a First Amended Complaint on November 14, 2017, that purports to identify three causes of action: (1) wrongful termination/discrimination, (2) employer negligence due to “improper lock out tag, ” and (3) employer negligence in its denial of mask/P.P.E. to employees as well as its denial of “workers comp [sic] to file a claim for workers comp due to exposure of saw dust.” Defendant filed a motion to dismiss Plaintiff's First Amended Complaint alleging that Plaintiff has failed to state a claim for which relief can be granted on any of his claims arguing (1) Plaintiff failed to plead exhaustion of administrative remedies and failed to timely file his discrimination claim after receiving his notice of right-to-sue letter, (2) OSHA does not create a private cause of action, and (3) the KWCA provides the exclusive remedy for a claim for workers' compensation benefits and bars this action.

         II. Legal Standard

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must present factual allegations, assumed to be true, to “raise a right to relief above the speculative level” and contain “enough facts to state a claim to relief that is plausible on its face.”[1] 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.”[2] The plausibility standard enunciated by the Supreme Court in Bell Atlantic v. Twombly, seeks a middle ground between heightened fact pleading and “allowing complaints that are no more than ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause action, ' which the Court stated ‘will not do.' ”[3] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[4]

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”[5] The Court, however, cannot “assume the role of advocate for the pro se litigant.”[6] The Court will not “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[7] The Court need only accept as true a plaintiff's “well-pleaded factual contentions, not his conclusory allegations.”[8]

         III. Analysis

         A. Plaintiff's race discrimination claim

         Plaintiff's First Amended Complaint contains enough facts to state a claim to relief that is plausible on its face under 42 U.S.C. § 1981.[9] Plaintiff alleges that he and three other employees were involved in a workplace accident with a saw that could have caused serious bodily injury to one of the employees involved, but fortunately, did not. After the incident, Defendant terminated Plaintiff, the only African American employee involved in the incident, and retained the other three white employees involved in the incident. Plaintiff denies fault for the near-miss, asserts that responsibility for the near-miss belongs to the lead/saw operator, and alleges that Defendant unlawfully discriminated against him on the basis of his race by firing Plaintiff and retaining the three white employees also involved in the incident. Plaintiff has set forth facts sufficient to state a claim for race discrimination that is plausible on its face.[10]

         Defendant offers only two arguments in favor of dismissal of Plaintiff's race discrimination claim: (1) that Plaintiff failed to adequately plead exhaustion of administrative remedies, and (2) that Plaintiff failed to file his lawsuit within 90 days of receiving his notice of right-to-sue letter.[11] While these requirements apply ...


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