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Jackson v. Board of County Commissioners of The County of Sherman County

United States District Court, D. Kansas

June 26, 2018

KRISTENA JACKSON, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SHERMAN COUNTY, KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         On January 2, 2018, plaintiff Kristena Jackson filed a First Amended Complaint (“Complaint”), against three defendants: (1) the Board of County Commissioners of the County of Sherman County, Kansas (“Sherman County”); (2) Northwest Kansas Ambulance Service (“NKAS”), and (3) AirMD, LLC d/b/a LifeTeam (“LifeTeam”). Doc. 16 at 1 (Compl. ¶¶ 2-4). Plaintiff's lawsuit arises out of her discharge from her position as an Advanced Emergency Medical Technician (“AEMT”). She asserts claims against defendants under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq., the Americans with Disabilities Act Amendments Act (“ADAAA”), 42 U.S.C. §§ 12101, et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the Kansas Act Against Discrimination (“KAAD”), Kan. Stat. Ann. §§ 44-1001 et seq., and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. Plaintiff also asserts a claim against defendant LifeTeam for violating Kansas public policy.

         Defendants have responded to the lawsuit by filing two, separate Motions to Dismiss asserting that plaintiff's Complaint fails to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). Doc. 20 (defendants Sherman County and NKAS's Motion to Dismiss), Doc. 22 (defendant LifeTeam's Motion to Dismiss). Plaintiff has filed a single Response to defendants' motions. Doc. 29. And defendants have submitted two, separate Replies. Docs. 34, 35.

         After considering the arguments and authorities presented in the parties' papers, the court grants defendants' Motions to Dismiss in part and denies them in part. The court grants defendants' motions to dismiss plaintiff's state law claims because plaintiff has agreed to dismiss them without prejudice. The court also dismisses plaintiff's ADAAA discrimination claim based on a disparate treatment or harassment theory because plaintiff has abandoned those theories. And the court dismisses plaintiff's claim that defendants violated the FLSA because plaintiff appears to concede that she has waived her claim by accepting a payment for unpaid wages supervised by the Secretary of Labor.

         The court denies the remainder of defendants' motions. To put it politely, defendants' remaining arguments for Rule 12(b)(6) dismissal are not well-taken. Some of their arguments seek dismissal based on pleading deficiencies that plaintiff cured when she filed her First Amended Complaint. Others ask the court to consider and weigh plaintiff's factual allegations- something the court cannot do at the motion to dismiss stage. The court would have anticipated a more-targeted dismissal motion-one that challenged the claims that are clearly implausible from the face of the Complaint and that plaintiff since has conceded. Instead, defendants chose to attack every claim in the Complaint. This choice required defendants to assert arguments about the merits of the case at the pleading stage, before discovery even had commenced. Defendants' choice also required the court to consider a variety of arguments that are ill-suited for a motion to dismiss. Defendants' choice is not consistent with the purpose of Rule 1, which directs federal courts to construe the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1.

         I. Factual Background

         The following facts are taken from plaintiff's Complaint. Doc. 16. The court accepts the facts asserted in the Complaint as true and views them in the light most favorable to plaintiff. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).

         Plaintiff worked for defendants as an AEMT from October 1, 2013 until her discharge on May 6, 2016. In January 2016, a firefighter-also employed by defendants-asked plaintiff if she had a snow blower that he could borrow for fire training. Plaintiff said that she did, and she offered her snow blower for use during training.

         On January 5, 2016, while plaintiff was retrieving her snow blower, she fell and broke her left ankle. An ambulance transported plaintiff to Hays Medical Center for surgery. Plaintiff was diagnosed with a trimalleolar fracture dislocation (a three-part break) in her left ankle. Her injury required multiple surgeries, physical therapy, and significant healing time. Also, since her injury, plaintiff has suffered chronic pain on a daily basis.

         After her fall, plaintiff contacted defendants to advise of her injury. She requested FMLA leave, and defendants granted her FMLA request. During the week of March 20, 2016, plaintiff spoke to Duanne Wright (plaintiff's Director) about her FMLA leave. Mr. Wright told plaintiff that she needed to speak to Ashley Mannis[1] because he believed plaintiff would exhaust her FMLA leave around March 27, 2016. Plaintiff asked Mr. Wright if she could return to work before exhausting her FMLA leave and perform activities that were less physically demanding, such as teaching training or CPR classes or performing administrative tasks. Mr. Wright told plaintiff that she could not return to work in any capacity until she had healed fully. He also told plaintiff that she could not return to work in any capacity until she was able to carry 175 pounds without assistance. And Mr. Wright advised plaintiff that she could not return to work in any capacity until she was able to work in the field without any difficulties, including the ability to walk on uneven surfaces and in ditches.

         As Mr. Wright instructed, plaintiff met with Ashley Mannis to discuss her FMLA leave. Plaintiff explained that she was on short term disability and asked if she could extend her FMLA leave. Ms. Mannis told plaintiff that she didn't understand how FMLA leave worked, and she didn't know if plaintiff could extend her leave. Ms. Mannis told plaintiff that she would get back to her. But she never did.

         Plaintiff alleges that she believed that her employer had extended her FMLA leave. According to the Complaint, after plaintiff exhausted her FMLA leave, she asked for an additional two months of FMLA leave. Doc. 16 at 6 (Compl. ¶ 52). Defendants granted plaintiff's request for the additional two months' leave. Id.

         In February 2016, Mr. Wright required plaintiff to come back to work on a Saturday and a Sunday to teach a 24-hour refresher course. Plaintiff taught the class while wearing a cast. Plaintiff received no pay for her time. She was told that her employer could not pay her because she was on FMLA leave and collecting short-term disability.[2]

         On April 11, 2016, plaintiff had another surgery. On April 22, 2016, plaintiff had a follow-up appointment with her surgeon. Her surgeon advised that she could return to full duty on May 1, 2016.

         On May 4, 2016, plaintiff contacted Interim Director, Mike Johnson, and requested a meeting to discuss her return to work on May 5, 2016. On May 4, 2016, plaintiff met with Mr. Johnson and Eric Albright, Billing Manager. When she entered the meeting, plaintiff asked several questions. They included whether she needed to know anything before returning to work the next morning. Mr. Johnson responded to plaintiff's questions by terminating her employment. Plaintiff asked Mr. Johnson why defendants were terminating her employment. Mr. Johnson replied that defendants were not required to give plaintiff any reasons for terminating her employment. Plaintiff then gathered her belongings and left the office. On May 5, 2016, defendants posted plaintiff's AEMT position.

         Plaintiff filed Charges of Discrimination against defendants with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission (“KHRC”). The Complaint alleges that defendants represented in their response to the EEOC and KHRC that defendants terminated plaintiff because she was the weakest employee of all the EMS crews and she had exhibited other performance problems. See Doc. 16 at 12 (Compl. ¶¶ 107, 108). The Complaint also cites an Affidavit that Ms. Mannis provided to the EEOC and KHRC. It describes an attached exhibit as a Final Warning that was contained in plaintiff's employment file when Mr. Johnson became the Interim Director in April 2016. Id. at 13 (Compl. ¶ 113). Ms. Mannis explains, though, that she had learned-but just recently and after plaintiff's termination-that the former Director prepared this written warning but never provided it to plaintiff.

         According to plaintiff, Mr. Wright never gave plaintiff any warnings during her employment. Likewise, he never demoted her as part of any discipline. To the contrary, plaintiff alleges, in June 2017, Mr. Wright gave her a written reference that spoke in positive terms about her job performance. And it recited that plaintiff “would be a great addition to your team.” Id. at 13 (Compl. ¶ 114).

         II. Legal Standard

         Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” which, as the Supreme Court explained simply, “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         For a complaint to survive a motion to dismiss under Rule 12(b)(6), the pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 570). “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.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009) (“The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” (citation omitted)).

         When considering whether a plaintiff has stated a plausible claim, the court must assume that the complaint's factual allegations are true. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). But the court is “‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Id. (quoting Twombly, 550 U.S. at 555). “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice'” to state a claim for relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Also, the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted).

         III. Analysis

         Defendants assert three arguments that-the court agrees-require dismissal of some of plaintiff's claims. First, defendants ask the court to dismiss plaintiff's state law claims under the KAAD and for violation of public policy. Defendants Sherman County and NKAS assert that the court lacks subject matter jurisdiction over the public policy claim because plaintiff never provided the requisite notice under Kan. Stat. Ann. § 12-105b. These defendants also seek dismissal of plaintiff's KAAD claim on the merits because, they contend, plaintiff's Complaint alleges no facts asserting a plausible KAAD claim. Defendant LifeTeam seeks dismissal of both state law claims on the merits. Plaintiff responds, conceding that she “is willing to dismiss her state law claims without prejudice.” Doc. 29 at 1. Defendant LifeTeam's Reply asks for a dismissal with prejudice. “The decision whether to dismiss with or without prejudice is within the court's discretion.” Mace v. Louisville Ladder, Inc., No. 92-1416-FGT, 1994 WL 17526, at *1 (D. Kan. Jan. 14, 1994) (citing 9 Wright & Miller, Federal Practice and Procedure § 2367 (1971)). Exercising its discretion here and to avoid a merits determination at the pleading stage, the court dismisses plaintiff's state law claims without prejudice.

         Second, as discussed in more detail in Part III.D. below, the court dismisses plaintiff's ADAAA discrimination claim based on either a disparate treatment or harassment theory because plaintiff appears to have abandoned her discrimination claim under those theories. But the court denies defendants' request to dismiss plaintiff's ADAAA discrimination claim that is based on her termination.

         Third, defendants assert that plaintiff fails to allege a plausible FLSA claim because she has waived her right to bring a claim by previously accepting a payment for unpaid wages. Plaintiff's Complaint asserts that the Kansas Department of Labor[3] has found that defendants were not paying their employees properly. Doc. 16 at 12 (Compl. ¶ 109). And, she asserts, she received a check for unpaid wages based on defendants' improper compensation practices. Id. (Compl. ¶ 110). Under the FLSA, an employee waives her right to bring a private cause of action under the FLSA when she accepts the payment of unpaid wages supervised by the Secretary of Labor. 29 U.S.C. § 216(c). Plaintiff's Response never responds to defendants' wavier argument. Thus, the court finds that she has abandoned any claim for FLSA violations. The court thus dismisses plaintiff's FLSA violation claim.

         Plaintiff's Response asserts that the FLSA still permits her to pursue a retaliation claim. Although one can make a retaliation claim based on the FLSA, see 29 U.S.C. § 215(a)(3), plaintiff's Count VII asserts a claim for a FLSA violation. It does not assert a retaliation claim. And, even if plaintiff had asserted a retaliation claim, her Complaint fails to allege facts capable of supporting a plausible inference that defendants retaliated against her in violation of the FLSA. To allege a prima facie case of FLSA retaliation, an employee must assert: “(1) she engaged in protected activity under FLSA, (2) she suffered an adverse employment action contemporaneous with or subsequent to the protected activity, and (3) a causal connection between the protected activity and the adverse employment.” Pacheco v. Whiting Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004). Plaintiff's Complaint never alleges that she engaged in any protected activity such as filing an FLSA complaint or otherwise asserting her rights under that Act. Without such allegations, plaintiff cannot state a plausible FLSA retaliation claim.

         Defendants' remaining dismissal arguments have no merit. The court addresses each one separately, below.

         A. Plaintiff's First Amended Complaint Properly Has Removed Sherman ...


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