United States District Court, D. Kansas
BRENDA A. FEARS, Plaintiff,
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, et al., Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
A. Fears brings suit pro se against the Unified
Government of Wyandotte County, Nancy Burns and
ASFME. See Employment Discrimination
Complaint (Doc. #1) filed November 22, 2017. Plaintiff
asserts claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the
Americans With Disability Act (“ADA”), 42 U.S.C.
§ 12101 et seq., claiming that defendants
unlawfully terminated her employment, failed to accommodate
her disability, imposed different terms and conditions of
employment compared to similarly situated employees,
retaliated against her and harassed her. Employment
Discrimination Complaint (Doc. #1) ¶ 1. This matter
comes before the Court on the Motion For Judgment On The
Pleadings And Suggestions In Support (Doc. #16) which
Burns filed on April 26, 2018, to which plaintiff has not
responded. For reasons stated below, the Court
sustains the motion.
motion for judgment on the pleadings under Rule 12(c), Fed.
R. Civ. P., is governed by the same standards as a motion to
dismiss under Rule 12(b)(6), Fed.R.Civ.P. See BV
Jordanelle, LLC v. Old Republic Nat'l Title Ins.
Co., 830 F.3d 1195, 1201 (10th Cir. 2016); Atl.
Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160
(10th Cir. 2000). In ruling on a motion to dismiss under Rule
12(b)(6), the Court assumes as true all well-pleaded factual
allegations and determines whether they plausibly give rise
to an entitlement of relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). To survive a motion to dismiss, a
complaint must contain sufficient factual matter to state a
claim which is plausible - not merely conceivable - on its
face. Id. at 679-80; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In determining
whether a complaint states a plausible claim for relief, the
Court draws on its judicial experience and common sense.
Iqbal, 556 U.S. at 679. The Court need not accept as
true those allegations which state only legal conclusions.
bears the burden of framing her claim with enough factual
matter to suggest that she is entitled to relief; it is not
enough to make threadbare recitals of a cause of action
accompanied by conclusory statements. See Twombly,
550 U.S. at 556. Plaintiff makes a facially plausible claim
by pleading factual content from which the Court can
reasonably infer that defendant is liable for the misconduct
alleged. Iqbal, 556 U.S. at 678. Plaintiff must show
more than a sheer possibility that defendant has acted
unlawfully - it is not enough to plead facts that are
“merely consistent with” defendant's
liability. Id. (quoting Twombly, 550 U.S.
at 557). A pleading which offers labels and conclusions, a
formulaic recitation of the elements of a cause of action or
naked assertions devoid of further factual enhancement will
not stand. Iqbal, 556 U.S. at 678. Similarly, where
the well-pleaded facts do not permit the Court to infer more
than the mere possibility of misconduct, the pleading has
alleged - but has not “shown” - that the pleader
is entitled to relief. Id. at 679.
ruling on a Rule 12(b)(6) motion, the Court does not analyze
potential evidence that the parties might produce or resolve
factual disputes. Jacobsen v. Deseret Book Co., 287
F.3d 936, 941 (10th Cir. 2002). The Court accepts
well-pleaded allegations as true and views them in the light
most favorable to the non-moving party. Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 1999).
complaint alleges the following facts.
is a black woman with a vision disability. Plaintiff worked
as an auditor in the Register of Deeds office for the Unified
Government. Employment Discrimination
Complaint (Doc. #1) ¶ 9.
2010, Nancy Burns was voted into office as the Register of
Deeds for the Unified Government. Id. at 4. At that
time, all but three of the women who worked in the Office of
the Register of Deeds quit. Id. at 3-4. Plaintiff
remained in her position as an auditor. Plaintiff's job
duties on the computer doubled, and she started having vision
problems. Id. Plaintiff's eyes became so bad
that Burns gave her a magnifying glass over her computer
screen. Id. Plaintiff's eyes had “running
water” and she “could not stand the light.”
October or November,  plaintiff took leave under the
Family Medical Leave Act (“FMLA”) for surgery on
her left eye. Id. She expected to miss three to four
weeks of work, but the healing took longer. Id. at
5-6. In January, the doctor told plaintiff to take frequent
breaks. Id. at 6. Burns told plaintiff that she
would need to take additional FMLA leave. Id. Burns
said that plaintiff could only take a break from the computer
when it was her official break time and that plaintiff's
FMLA leave would expire in February. Id. Due to lack
of FMLA leave, plaintiff could not get surgery on her right
picked on another black employee in the office named Dalvin
Dobbs and eventually fired her. Id. at 6. After
firing Dobbs, Burns added another duty for plaintiff: waiting
on all customers. Id. Burns told plaintiff that if
another employee got up to wait on a customer, she would
write up plaintiff. Id. Plaintiff applied for
Dobbs's job. Id. Burns said plaintiff was not
qualified even though plaintiff had worked as an auditor for
almost six years. Id.
imposed stricter terms and condition of employment on
plaintiff than other employees. Even though other employees
were available to help, Burns did not allow plaintiff to take
her regularly scheduled break when customers came in.
Id. at 8. Plaintiff complained to the union
representative, and Burns got mad at her. Id. Even
though other employees routinely did so, Burns did not allow
plaintiff to take personal calls or eat at her desk.
Id. Other employees took unscheduled breaks on work
time, but Burns punished plaintiff when she was only two
minutes late returning from break. Id. at 8-9. Burns
wrote up plaintiff numerous times for behavior that did not
warrant it. Id. at 9-10.
belittled plaintiff like she was a child. Id. at 10.
As a result of the way in which Burns treated her, plaintiff
suffered stress and high blood pressure. Id. In
August, Burns suspended plaintiff without pay. Id.