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Middleton-Thomas v. Piat, Inc.

United States District Court, D. Kansas

July 3, 2018

LaShone Middleton-Thomas and Guinans Carol Cleveland, Plaintiffs,
v.
Piat, Inc. f/k/a ServPro of Olathe/Lenexa, Inc., Defendant.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         Plaintiffs filed this lawsuit against defendant Piat, Inc. alleging race discrimination and racial harassment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiff Cleveland asserts two additional claims-a claim for retaliation under Title VII and § 1981 and a state law claim for retaliatory discharge. This matter is presently before the court on defendant's motion for summary judgment on all claims of both plaintiffs (doc. 137). As will be explained, the motion is denied as to plaintiff Thomas's claim that defendant denied her a pay increase based on race; is denied as to plaintiff Cleveland's discriminatory discharge and retaliation claims; and is otherwise granted.

         I. Facts

         The following facts are uncontroverted or related in the light most favorable to plaintiffs as the nonmoving parties. Defendant Piat, Inc. is a local ServPro franchisee. Its primary business is to remediate and restore homes and businesses that have been damaged by water or fire. Defendant employs administrative office employees who answer the phones, audit job files to ensure they are properly billed, bill the customers, and handle payments and accounts receivable. Plaintiff LaShone Middleton-Thomas began working in defendant's administrative office on February 4, 2015.[1] She earned an hourly wage of $13.00 during the course of her employment. When plaintiff Thomas first started working for defendant, she generally was an administrative assistant and, in that capacity, answered the phones, processed paperwork, and performed other administrative tasks as directed by the office manager. Plaintiff Thomas also acted as the “back up” scheduler when the scheduler was absent. The scheduler dispatches and schedules field technicians to work at various properties throughout the day and is responsible for getting field technicians to work sites at the appropriate time. At some point during her employment, plaintiff Thomas also began placing supply orders for defendant. Mike Hogan, defendant's operations manager since 2011, instructed plaintiff Thomas what to purchase and plaintiff Thomas would place the order. At all times, plaintiff's direct supervisor was the office manager who, until November 2016, was Dru Farthing. When Ms. Farthing was terminated in November 2016, Terri Kesler became the officer manager. The office manager reported to Cory Bates, one of defendant's owners. The other two owners of defendant were Jack Whitaker and Clo Whitaker.

         In August 2015, Mssrs. Bates and Hogan hired plaintiff Guinans Carol Cleveland as a project manager. Plaintiff Cleveland's annual salary throughout her employment with defendant was $50, 000. Shortly after plaintiff Cleveland was hired, defendant created a new position for plaintiff Cleveland and she began handling some of the work that Mr. Hogan had been performing as operations manager. Specifically, in September 2015, plaintiff Cleveland became defendant's Human Resource and Safety Manager. In this role, plaintiff was responsible for typical human resource functions, such as bringing employees' concerns to management; advising managers on employee discipline; and coordinating hiring. She was also responsible for maintaining the company's fleet of vehicles and for complying with certain safety regulations. During her employment, plaintiff Cleveland reported directly to Mr. Hogan. Plaintiff Cleveland does not dispute that, by March 2016, Mr. Hogan believed that plaintiff Cleveland had significant performance issues in her role as Human Resource and Safety Manager. Among other issues, Mr. Hogan believed that plaintiff was insubordinate by distributing forms and policies to production staff without discussing those forms and policies with Mr. Hogan and by failing to conduct safety trainings despite being asked to do so. Mr. Hogan also believed that plaintiff Cleveland had a misunderstanding of government regulations resulting in unnecessary costs to the company. The record reflects that plaintiff Cleveland and Mr. Hogan had frequent discussions about defendant's compliance with DOT regulations and, to a lesser extent, OSHA regulations.

         In June 2016, plaintiff Thomas became aware that Mr. Bates had concerns about plaintiff's performance when she received an email from Ms. Farthing conveying Mr. Bates' concerns. According to Ms. Farthing's email, Mr. Bates was concerned about plaintiff Thomas's attitude and the fact that she always seemed unhappy. He was also concerned with the amount of time that plaintiff Thomas spent in plaintiff Cleveland's office and he did not understand why those meetings or visits were occurring so frequently. In early August 2016, Mr. Bates himself expressed concerns to plaintiff Thomas about having low energy and appearing “kind of down” and he wondered whether plaintiff Thomas did not like him or did not like ServPro. Around this same time, plaintiff Thomas made a complaint via email to Mr. Bates and Ms. Farthing in which she stated that she believed she was being treated differently than others at ServPro based on her race. Plaintiff Thomas highlighted that she had been at work for 17 months without a pay raise and that defendant was scrutinizing her work, work habits and personality traits more closely than it scrutinized other employees. She alleged that defendant had stereotyped her as an “Angry Black Woman.” Mr. Bates, Ms. Farthing and plaintiff Cleveland met with plaintiff Thomas the following day to discuss her concerns and then met again a few days later to discuss any additional concerns.

         Mr. Hogan reviewed plaintiff Cleveland's performance in August 2016 and he communicated the issues he had with plaintiff Cleveland's performance both before her review, during her review and after her review. Based on his opinion regarding plaintiff Cleveland's performance, Mr. Hogan did not recommend a salary increase and plaintiff did not receive one. In late October or early November 2016, defendant's payroll vendor, Bukaty Companies, offered to handle the human resource functions that plaintiff had been performing and it offered to do so at a significantly lower cost than plaintiff Cleveland's annual salary. Mr. Bates discussed the offer with Mr. Hogan and they agreed that having Bukaty perform the human resource functions for defendant would be a good decision due to the cost savings and because plaintiff Cleveland's performance had not met defendant's expectations. Mssrs. Bates and Hogan decided to terminate plaintiff Cleveland's employment, effective November 21, 2016, and to outsource her position. Defendant did not replace plaintiff Cleveland; Bukaty has performed the human resource aspects of plaintiff's position and other employees of defendant have performed the safety-related aspects of plaintiff's position. Plaintiff avers that just 12 days prior to her termination, on November 9, 2016, she reported to Clo Whitaker that she felt like she was being treated differently than other management staff and that defendant “was violating multiple OSHA and DOT regulations.” Plaintiff Thomas resigned her employment on September 8, 2017. Defendant did not replace plaintiff Thomas and other administrative office employees have absorbed her duties.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Exhaustion of Administrative Remedies

         Federal courts lack jurisdiction over Title VII claims that were not previously covered in a claim presented to the Equal Employment Opportunity Commission. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). Stated another way, exhaustion of administrative remedies is a prerequisite to suit and administrative remedies generally must be exhausted as to each discrete instance of discrimination or retaliation. See Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012). “Exhaustion still serves the important purposes of protecting employers by giving them notice of the discrimination claims being brought against them and providing the EEOC with an opportunity to conciliate the claims.” Hung Thai Pham v. James, 630 Fed.Appx. 735, 738 (10th Cir. Oct. 20, 2015) (quoting Gad v. Kansas State Univ., 787 F.3d 1032, 1040 (10th Cir. 2014)). Defendant moves for summary judgment on several claims asserted by both plaintiffs for failure to exhaust administrative remedies.

         In her September 30, 2016 charge of discrimination-the only one she filed-plaintiff Thomas alleges discrimination based on race and describes the “particulars” as follows:

I. I was hired by Respondent on or about 2/15 and I am employed as an Asst. Scheduler.
II. During my employment, I have been assigned the job duties of extra positions to perform without receiving a pay increase for doing so. A white employee has received a pay increase each time her assigned job duties have been changed. I was offered a wage increase which was revoked after I wrote a letter complaining of discrimination.
III. I have been subjected to a hostile work environment in that my performance and attendance are closely scrutinized while white . . . employees are not subjected to such scrutiny.
IV. I believe this is 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 by the laws enforced by EEOC.

         She averred that the earliest date of discrimination was May 1, 2016 and that the latest date of discrimination was July 29, 2016. She also marked the “continuing action” box with respect to the dates that the discrimination occurred.[2]

         Plaintiff Thomas now seeks to assert Title VII claims based on allegations that defendant required her to “clock out” for lunch breaks but did not require Caucasian employees to do so and that defendant denied her paid-time-off hours but provided such hours to Caucasian employees.[3]Plaintiff does not dispute that these claims are not expressly included in her charge of discrimination but contends that those claims are “reasonably related” to the wage claims asserted in the pretrial order. Plaintiff's argument, however, relies on language and authorities that the Tenth Circuit abrogated many years ago. See Freppon v. City of Chandler, 528 Fed.Appx. 892, 898-99 (10th Cir. July 1, 2013) (citing Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) (unexhausted claims involving discrete employment actions are no longer viable, including termination claims arising after a charge of discrimination has been filed)). The court, then, is required to dismiss these Title VII claims. See id.; accord Goldsby v. James, 580 Fed.Appx. 685, 686 (10th Cir. Oct. 23, 2014) (district court properly dismissed unexhausted termination claim that arose after the filing of the charge and rejected “outdated” authority permitting pursuit of unexhausted claims when “reasonably related” to those included in charge) (citing Eisenhour v. Weber County, 744 F.3d 1220, 1227 (10th Cir. 2014) (explaining abrogation of exhaustion exception for reasonably related claims by discrete-incident rule)).[4] The only discrete claim of race discrimination set forth in plaintiff Thomas's charge is her claim that defendant denied her a wage increase based on her race.

         Defendant also contends that plaintiff Thomas failed to exhaust her racial harassment claim because she failed to include in her charge the identity of any alleged harasser or the time period of the harassment. This argument is rejected because the Tenth Circuit does not require that level of specificity in a charge of discrimination. Plaintiff expressly alleged in her charge that she was subjected to a hostile work environment based on her race and the approximate time period is clear on the face of the charge. While plaintiff does not identify an alleged harasser, her allegations concerning performance and attendance scrutiny are sufficient to put defendant on notice that plaintiff's supervisor or supervisors were likely the subject of those allegations. No more is required. Plaintiff Thomas has sufficiently exhausted her claim of racial harassment. See Jones v. Needham, 856 F.3d 1284, 1290-92 (10th Cir. 2017) (charge need only “describe generally” the alleged discrimination in order to give notice of an alleged violation to the employer; factual allegations supporting plausibility not required).

         In plaintiff Cleveland's November 22, 2016 charge of discrimination (like plaintiff Thomas, plaintiff Cleveland filed only one charge), she alleges discrimination based on race and retaliation and describes the “particulars” as follows:

I was hired by Servpro on August 3, 2015 to work as a Project Manager. My position later changed to HR, Safety and Fleet Manager. I held this position until I was wrongfully discharged on or about November 21, 2016.
During my employment I witnessed favoritism and racism in employment actions of the employer. Black employees were denied raises while white employees were given raises. I complained to upper management about the flagrant disregard of company funds by its Operations Manager. Subsequently I was given a poor performance and denied a raise. On November 2, 2016, I again informed upper management of the actions of the Operations Manager that cost the employer a great deal of money. Then on or about November 21, 2016 I was told that my position was being outsourced and I was discharged.
I believe I have been given poor performance evaluations, denied pay increases and discharged because my race (black) in violation of Title VII of the Civil Rights Act of 1964 . . . and in retaliation for complaining of unfair acts and practices.

         Plaintiff Cleveland averred that the earliest date of discrimination was August 1, 2016 and that the latest date of discrimination was November 21, 2016. She also marked the “continuing action” box with respect to the dates that the discrimination occurred.

         Plaintiff Cleveland now seeks to add a claim based on allegations that defendant, based on plaintiff Cleveland's race, denied her “compensatory time” for overtime hours that she worked.[5]She concedes that this claim does not appear in her charge of discrimination but contends that the court may consider it nonetheless because it is reasonably related to her wage claim. For the same reasons that the court rejected plaintiff Thomas's argument, plaintiff Cleveland's argument is rejected. See Eisenhour v. Weber County, 744 F.3d 1220, 1227 (10th Cir. 2014) (explaining abrogation of exhaustion exception for reasonably related claims by ...


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