United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
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.
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,
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.
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.
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
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.
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.
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 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.
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.
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.
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.
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
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.
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.
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).
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)).
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)).
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).
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
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.
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 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.
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.
remaining dismissal arguments have no merit. The court
addresses each one separately, below.
Plaintiff's First Amended Complaint Properly Has Removed